# Obama picks Sotomayor



## PedanticTurkey (Jan 26, 2008)

I don't know about you guys, but I'm glad to hear that the president didn't cave to pressure and picked the most qualified candidate for the job.


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## Beau (Oct 4, 2007)

Once again, Obama tells everyone who he is by his actions. I believe if anyone supports his choice, then that person is against the rule of law and believes that policy is made from the bench. 

Obama is the Manchurian candidate and he is trying everything to destroy our once great country.


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## PedanticTurkey (Jan 26, 2008)

Heh, typo. That should read...

"I'm glad to hear that the president didn't cave to pressure and *pick* the most qualified candidate for the job."


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## jackmccullough (May 10, 2006)

Beau said:


> Once again, Obama tells everyone who he is by his actions. I believe if anyone supports his choice, then that person is against the rule of law and believes that policy is made from the bench.
> 
> Obama is the Manchurian candidate and he is trying everything to destroy our once great country.


Excellent point. How could anyone think that a judge who could progress from being raised in the projects by a single mother to graduate from Princeton and Yale Law School, serving as editor of the Yale Law Journal, to being appointed to federal judicial appointments by presidents of both political parties would have any qualifications to sit on the Supreme Court?


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## Quay (Mar 29, 2008)

jackmccullough said:


> Excellent point. How could anyone think that a judge who could progress from being raised in the projects by a single mother to graduate from Princeton and Yale Law School, serving as editor of the Yale Law Journal, to being appointed to federal judicial appointments by presidents of both political parties would have any qualifications to sit on the Supreme Court?


What is this, logic and stating the obvious? That won't hold here. Nope. This most qualified and definitely interesting choice for the Supreme Court will be denounced because _Some_ think that she is not _One Of Us_, the chosen few, who correctly perceive reality as opposed to the Others who are delusional.

It will be hard to denounce her completely since George H.W. Bush did appoint her and since he was at the time still awash in the pure waves emanating from Saint Ronald...well, but I'm sure the Indignitaries will find a way to see disaster and cull fear from airy nothing.

Won't make any difference, though. She will be confirmed.


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## PedanticTurkey (Jan 26, 2008)

Quay said:


> This most qualified and definitely interesting choice for the Supreme Court will be denounced because _Some_ think that she is not _One Of Us_, the chosen few, who correctly perceive reality as opposed to the Others who are delusional.


And that, folks, is how one uses "most qualified" to mean "minimally qualified."

She's an unremarkable jurist with an impressive resume. They're a dime a dozen. Why her? I think we all know the answer to that question.


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## Country Irish (Nov 10, 2005)

I think Obama got it right on the first try. This lady has a great track record, understands real people and how the law and Constitution impacts their lives AND she has a great American success story to keep the pundits talking. 
This should be an easy confirmation if everyone avoids politics and assesses her on her ability.


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## Xhine23 (Jan 17, 2008)

Beau said:


> Once again, Obama tells everyone who he is by his actions. I believe if anyone supports his choice, then that person is against the rule of law and believes that policy is made from the bench.
> 
> Obama is the Manchurian candidate and he is trying everything to destroy our once great country.


:crazy:


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## norton (Dec 18, 2008)

jackmccullough said:


> Excellent point. How could anyone think that a judge who could progress from being raised in the projects by a single mother to graduate from Princeton and Yale Law School, serving as editor of the Yale Law Journal, to being appointed to federal judicial appointments by presidents of both political parties would have any qualifications to sit on the Supreme Court?


Well, for one thing I would welcome a supreme court judge who was not a product of ivy league schools. For that matter, I'd also welcome a president who was not. It would certainly add to the intellectual diversity.


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## Mike Petrik (Jul 5, 2005)

As is usually the case, I agree with Taylor, below. This is a disappointing selection, perhaps even disturbing, but she should be confirmed unless one can show that she is plainly lacking in experience, temperament, or intelligence -- and I am not aware of any convincing arguments that such is the case. Elections have consequences, and Obama won. It is hardly a surprise that he would select a judge who stated:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life."

And just when you think that is an awfully arrogant thing to say, she reassures you with the humble acknowledgement that ...

... although "men lawyers... need to work on" their "attitudes," many have already reached "great moments of enlightenment."

Plainly, she should be confirmed. The American people have decided that identity politics should trump the rule of law, and they deserve to get what they want.


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## obiwan (Feb 2, 2007)

This was more than enough for me to say she is a poor choice



> Sotomayor *does not believe that the Second Amendment right to bear arms applies to individuals*. While on a panel discussion at Duke Law School, she argued that the "Court of Appeals is where policy is made." Judge Sotomayor has had 5 decisions reviewed by the U.S. Supreme Court, 3 of which have been reversed. She has carried 11 of 44 possible votes during those cases. In Knight v. Commissioner of Internal Revenue, Chief Justice Roberts stated that her method of reading the statute in question "*flies in the face of the statutory language.*"


Then there was this tid bit...


> Some have described her temperament on the bench as a "bully" and "abusive" to lawyers.


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## Mike Petrik (Jul 5, 2005)

obiwan said:


> This was more than enough for me to say she is a poor choice
> 
> Then there was this tid bit...


I am also disturbed by this nomination. But her Second Amendment jurisprudence, while in my view quite incorrect (see https://www.guncite.com/journals/vanalful.html for the best and most thorough scholarly discussion of the issue), is not so idiosyncratic that it can fairly be regarded as unprofessional or unreasonable. And while I agree that temperament matters, we would need considerable evidence to overcome what in my mind should be a presumption in favor of the president's nominee.


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## PedanticTurkey (Jan 26, 2008)

Obama himself has said that disagreeing with a nominee's positions on the issues is enough to justify a vote against confirmation.

Oddly enough, I agree.


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## Quay (Mar 29, 2008)

Mike Petrik said:


> As is usually the case, I agree with Taylor, below. This is a disappointing selection, perhaps even disturbing, but she should be confirmed unless one can show that she is plainly lacking in experience, temperament, or intelligence -- and I am not aware of any convincing arguments that such is the case. Elections have consequences, and Obama won. It is hardly a surprise that he would select a judge who stated:
> 
> "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life."
> 
> ...


Do you believe these citations are indicative of her mindset as a whole or are they careful selections for the purpose of influencing public opinion? Both?


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## ksinc (May 30, 2005)

jackmccullough said:


> Excellent point. How could anyone think that a judge who could progress from being raised in the projects by a single mother to graduate from Princeton and Yale Law School, serving as editor of the Yale Law Journal, to being appointed to federal judicial appointments by presidents of both political parties would have any qualifications to sit on the Supreme Court?


How is that different from saying all judges are qualified to sit on the Supreme Court?

Don't all judges traverse from quantitatively zero intellectually to graduating law school; and shouldn't they all be capable of editing a law school journal?

That's kind of like giving a CPA accolades because they can teach the theoretical application of Consolidation Accounting; isn't it?

I haven't heard what sets her apart as a Judge such that she should be elevated to Justice other than that she is a "latina." I'm not sure why sexism and racism has a play here, but FWIW regionally speaking, I think we stop calling them "latinas" when they cross 30yo or 130#; whichever comes first.  So, if it's because she's supposed to be cute or something - she loses. She's just some old lady AFAIC. She seemed ok when she was putting her best foot forward, but some of the extemperaneous comments leave a lot to be desired IMHO.

I don't understand why Liberals would want their nominee trotted out in "porn industry terms", but whatever works for them; I guess.

There seems to be a communication problem here with the general public: https://images.google.com/images?hl=en&q=latina&um=1&ie=UTF-8&sa=N&tab=wi


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## Mike Petrik (Jul 5, 2005)

Quay said:


> Do you believe these citations are indicative of her mindset as a whole or are they careful selections for the purpose of influencing public opinion? Both?


Probably both. Certainly the latter, and probably the former though it is hard to say with true confidence. That said, I'd make a couple points: first, these statements are hard to explain away unless the explanation is simply that they are justified. Many of my liberal friends would do just that. They would say that these statements are perfectly fine because they are true. The whole "white, male, privilege" thing, you know. Second, I would mention that Taylor is a scrupulously fair journalist. A former Senior Fellow at the Brookings Instutute, he is invariably measured and thoughtful, even when I disagree with him -- most liberals seem to think he is a conservative, and most conservatives seem to think he is a liberal. Personally, I think he is a moderate conservative, but I admit I'm not sure and I've read him for many years.

If Stuart has a bugbear it is judges making policy rather than honestly interpreting the law. I think he is genuninely discomforted by Sotomayor's record, as am I.

All that said, I still think she should be confirmed unless something unanticipated develops. She may have some social and political views that I find disturbing, but I just don't think that disqualifies her. Obama won, and the GOP should not fail to confirm his nominee for reasons of political disagreement. Both sides have been playing that game (albeit to different degrees) since Bork, and it should stop. I know the prevailing opinion among Republican legal advisors is that the GOP should return the Dem's favor by applying their practices (),
but I disagree. I'm still a "two wrongs don't make a right" kind of guy.


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## PedanticTurkey (Jan 26, 2008)

The judiciary is the most powerful and least accountable branch of government. That's why supreme court justices are appointed by the president and confirmed by the senate.

The senate, which is supposed to represent _the states_, has a duty to make sure that any nominee will protect the states from the federal government and enforce the constitutional limits on federal power.

Unfortunately the senate of today is so far divorced from their constitutional role that the only thing they're interested in is party politics.


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## bigchris1313 (Apr 16, 2009)

My God, Obama really is a magnificent bastard.

At this point, the GOP has no choice but to grin and bear it. And avoid saying or implying anything regarding what color she is.


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## Jovan (Mar 7, 2006)

Beau said:


> Once again, Obama tells everyone who he is by his actions. I believe if anyone supports his choice, then that person is against the rule of law and believes that policy is made from the bench.
> 
> *Obama is the Manchurian candidate and he is trying everything to destroy our once great country.*


BAHAHAHAHAHA

Aha... aha... I'm sorry but...

That is just about the funniest thing I've _ever seen_ in the Interchange.


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## Stringfellow (Jun 19, 2008)

I don't like the pick either, but elections have consequences. The President gets to pick who he wants. I didn't like Alito or Roberts either, but again, the President gets to pick. Oddly enough, I liked Miers - too bad.


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## jackmccullough (May 10, 2006)

bigchris1313 said:


> My God, Obama really is a magnificent bastard.
> 
> At this point, the GOP has no choice but to grin and bear it. And avoid saying or implying anything regarding what color she is.


Too late:

Sen. James Inhofe (R-OK): "In the months ahead, it will be important for those of us in the U.S. Senate to weigh [Sotomayor's] qualifications and character as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences."


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## Peak and Pine (Sep 12, 2007)

Until Conan debuts in a coupla days, you right-wing wads and your feeble attempts to besmirch and bemoan are sufficing very nicely.​


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## Quay (Mar 29, 2008)

Mike Petrik said:


> ... The American people have decided that identity politics should trump the rule of law, and they deserve to get what they want.


Aww, you say that like it's something new. "Identity politics" could be easily viewed as something that happened at the very creation of this country, with only propertied gentlemen counting for much, with women and slaves counting for not much at all.

I'd like to think we've been on a progressive course since then to allow the ideals of this country to apply to all her citizens, to apply the rule of law to everyone equally without bias and discrimination based on a scrap heap of unverifiable things we label "tradition."


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## Quay (Mar 29, 2008)

jackmccullough said:


> Too late:
> 
> Sen. James Inhofe (R-OK): "In the months ahead, it will be important for those of us in the U.S. Senate to weigh [Sotomayor's] qualifications and character as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences."


I confess to an undue giggling admiration begetting levity when I read or hear anything Senator Inhofe has to say. A congenial team comprised of the thousand greatest comedy writers in history could not have dreamed him up.


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## Quay (Mar 29, 2008)

Mike Petrik said:


> ... Obama won, and the GOP should not fail to confirm his nominee for reasons of political disagreement. Both sides have been playing that game (albeit to different degrees) since Bork, and it should stop. I know the prevailing opinion among Republican legal advisors is that the GOP should return the Dem's favor by applying their practices (),
> but I disagree. I'm still a "two wrongs don't make a right" kind of guy.


Two wrongs don't indeed make anything but more wrong, but I suspect you'd find vigorous debate as to whether the rejection of Judge Bork was a wrong or not. 

Seems a sensible thing, though, to allow the new President to pick his nominees unless there is something really bad about them, like Nixon's choices of Haynsworth and Carswell or George W. Bush's attempt to put Harriet Miers on the court.


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## Quay (Mar 29, 2008)

Pat Oliphant has a funny view of some of the opposition reaction:


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## ksinc (May 30, 2005)

jackmccullough said:


> Too late:
> 
> Sen. James Inhofe (R-OK): "In the months ahead, it will be important for those of us in the U.S. Senate to weigh [Sotomayor's] qualifications and character as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences."


As her race and gender have been supplied as evidence of her qualifications that seems like a reasonable contention to make. The only honest comment I've really heard yet from the commentators was one democrat guy who said basically look it's a political appointment; and he has the votes.

I really don't see why if that is the case we have to invent some other reason; such as judicial empathy.

Will she rule fairly; equally? Has she in the past without under personal bias? Why isn't that a reasonable line of questioning?


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## Liberty Ship (Jan 26, 2006)

jackmccullough said:


> Excellent point. How could anyone think that a judge who could progress from being raised in the projects by a single mother to graduate from Princeton and Yale Law School, serving as editor of the Yale Law Journal, to being appointed to federal judicial appointments by presidents of both political parties would have any qualifications to sit on the Supreme Court?


Will we be able to see her college transcripts, her SAT scores and LSAT scores? Or shall we just assume she had a free ride like the Obamas?


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## ksinc (May 30, 2005)

Liberty Ship said:


> Will we be able to see her college transcripts, her SAT scores and LSAT scores? Or shall we just assume she had a free ride like the Obamas?


I've heard both that she "earned' and "won" scholarships to Princeton and Yale, but nothing offering greater insight.

I'm pretty cynical/skeptical about people that get their education for free and use the word "earned/won." What is she going to do; throw the people that "gave" her everything under the bus?

I earned my Summa Cum Laude too; $125 at a time. Carrying checks into the registrar was a painful experience at times.

If she's Summa her transcripts are good and she'd probably have ~1500+ SATs, but I tend to think she's been "earning" her free education post-graduation.

Being smart and making good grades doesn't make it any less of a free-ride; and doesn't mean you earned it. Will anyone ask did it affect her affirmative-action decision regarding the fire-fighter case? That would be worth watching the hearings to hear asked...


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## pt4u67 (Apr 27, 2006)

I don't care about where she came from, how she got to where she is today, what her grades were like in school or where she went to school for that matter. 

Does she understand the concept of blind justice and the role of an independent judiciary. This seems like a silly question to ask someone who is a federal judge, what we need to know. If we don't like a legislator, we can get rid of that person within a few years. A judge, however, that acts as a de facto legislator is a different story. I saw a video of her about a month ago where she was joking about how policy is made at the federal appellate level. That concerns me but I'm willing to hold my powder until she is questioned.


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## Liberty Ship (Jan 26, 2006)

There is no doubt in my mind that Obama's appointment to the Harvard Law Review was a political appointment. I am assuming the same about Sotomayor's appointment to the Yale Law review. If I recall correctly, Obama never wrote a single piece for the Harvard Review.

"Earned" is one thing, "won," is another, but don't forget "granted." Something neither earned nor won.


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## ksinc (May 30, 2005)

pt4u67 said:


> I don't care about where she came from, how she got to where she is today, what her grades were like in school or where she went to school for that matter.
> 
> Does she understand the concept of blind justice and the role of an independent judiciary. This seems like a silly question to ask someone who is a federal judge, what we need to know. If we don't like a legislator, we can get rid of that person within a few years. A judge, however, that acts as a de facto legislator is a different story. I saw a video of her about a month ago where she was joking about how policy is made at the federal appellate level. That concerns me but I'm willing to hold my powder until she is questioned.


I agree with you except for the "how she got where she is today" for two reasons.

First, because how she got where she is today helps us understand what she values and if she has loyalties that she can't be trusted to ignore when making decsions.

Second, because if this is all just about politics; Obama made an issue of it and how it was an _American _story. Recently I watched a story of someone on CNBC who put themselves through Harvard working at a Drug Store then became a successful business owner. I thought that was a more _American_ story than someone being given a scholarship then spending their life working in the government sector.


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## Nicesuit (Apr 5, 2007)

obiwan said:


> This was more than enough for me to say she is a poor choice
> 
> Then there was this tid bit...


+1

Yet from the looks of things there are a couple of people here that will look only at the contents of a sheet of paper instead of the content of a persons character and declare them worthy. Oddly enough they are the same people that support the "Paper Tiger" President we are currently saddled with. This is how liberals excuse their poor choices.


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## TMMKC (Aug 2, 2007)

YAWN! You didn't need to be Nostradamus to see this type of pick by Obama coming down the pike. The Right will get indignant and the Left will get defensive during the approval process. In the end, she'll get in. 
Just like Obama's undeserved popularity, there's nothing anyone can do about it. I only hope she interprets of our laws fairly and without bias.


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## Lord Foppington (Feb 1, 2005)

ksinc said:


> I agree with you except for the "how she got where she is today" for two reasons.
> 
> First, because how she got where she is today helps us understand what she values and if she has loyalties that she can't be trusted to ignore when making decsions.
> 
> Second, because if this is all just about politics; Obama made an issue of it and how it was an _American _story. Recently I watched a story of someone on CNBC who put themselves through Harvard working at a Drug Store then became a successful business owner. I thought that was a more _American_ story than someone being given a scholarship then spending their life working in the government sector.


Some strange and extreme opinions on this thread.

If you're saying that a person from a very poor background, rewarded with scholarships to attend fine institutions, simply can't be trusted because of her loyalties (to...what? foundations who grant scholarships?), then...what? Every scholarship kid is inherently unfit for public office? That can't be what you mean; I've never encountered such an opinion.

Everybody comes from somewhere. I'd no more disqualify Sotomayor because she won scholarships than I would a rich kid who had his college paid for by his parents. Who knows? Maybe he'd have a lot to offer. I wouldn't automatically suspect him of intractable upper-class loyalties.

As for deciding which story is "more American," again you lose me. They both can be plenty American--speaking for myself, that's where I'd leave it.


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## ksinc (May 30, 2005)

Lord Foppington said:


> Some strange and extreme opinions on this thread.
> 
> If you're saying that a person from a very poor background, rewarded with scholarships to attend fine institutions, simply can't be trusted because of her loyalties (to...what? foundations who grant scholarships?), then...what? Every scholarship kid is inherently unfit for public office? That can't be what you mean; I've never encountered such an opinion.
> 
> ...


Loyalty to the liberal establishment that funded her entitlements.

I'm not the one holding her up as an example.

Unfit for public office? No. But let's not make make her out to be more than she is and elevate her to the highest court in the land - she's at best described as a mediocre judge. She's been reversed 3 of 5 times by one article I read; once rather embarrassingly.

No one has said why she should be a Justice beyond she is a formerly poor, latina woman and that uniquely qualifies her.

In a capitalist society, I think someone that has succeeded in the society at large is more uniquely qualified to judge it. Why can't I have an opinion that someone who worked their way through Community School, got a job, and put themselves through law school through their own hard work or perhaps joined the Military to earn money for College and then spent years as a judge isn't more qualified and better able to empathize and apply the law fairly/equally based on American ideals and values rather than race and sex? How is that extreme? In my experience that is more like the America I live in. President Obama is the one making the American/Empathy argument; I'm just responding to his appeal. If you think it's illogical; then we agree.

I have no sympathy for rich kids that were entitled either. Your implying that is embedded in my view is what is strange and extreme. Everybody comes from somewhere, but not everybody gets THERE. Therefore _how_ a person got there is relevant. I'm not disqualifying her; I'm asking why is she qualified and not getting a legitimate answer.

Unless you are starting with an assumption that there is no one qualified for the Supreme Court that earned their way where they are today?


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## Jovan (Mar 7, 2006)

What scholarships did she get exactly? Were they related to her race? I ask because I believe someone HAS earned their way through school if it was due to dedication. That's how many great people throughout history have gotten higher education -- EARNING scholarships due to hard work because they can't pay for tuition otherwise. There is no shame in that. There is no reason to distrust them because of that.

Correct me if I'm wrong of course.


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## ksinc (May 30, 2005)

Jovan said:


> What scholarships did she get exactly? Were they related to her race? I ask because I believe someone HAS earned their way through school if it was due to dedication. That's how many great people throughout history have gotten higher education -- EARNING scholarships due to hard work because they can't pay for tuition otherwise. There is no shame in that. There is no reason to distrust them because of that.
> 
> Correct me if I'm wrong of course.


I don't know. That's the question. It's been lauded that she "earned" and "won" them, but the lack of details offered is suspicious at best. The question is how? Do I think someone "earns" the GI Bill? YES!

In my view, the problem with what you said is that it starts with a faulty assumption - that there is no way to pay tuition unless you are rich or receive a scholarship. That's just not true.

It's called a job. Hard work. Saving. Prioritizing. Loans. We should be honoring and rewarding that; and teaching it to others. It's the true source of our Economic power; and therefore our Freedom and Liberty. Instead we are turning life into a lottery system.

Instead we have allowed a certain political class to foster a belief that unless you go to one of three or four schools you aren't fit for public office or the highest public office and you have to be rich or receive a scholarship to go to those three or four schools. I'm not knocking the genius of the system only pointing out that we get a fairly consistent product out of it by design.

Ok, maybe I am knocking it - We have a society now where people who were given everything they have are telling those who earned what they have how things should work. 
Forgive me if I continue to over-weight the opinions of the people who earned their way by the traditional definition of "earn." I freely admit there are fewer and fewer of them. Maybe there are none left. Maybe there are none that are judges. I don't know the answers to these questions.


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## Lord Foppington (Feb 1, 2005)

ksinc said:


> No one has said why she should be a Justice beyond she is a formerly poor, latina woman and that uniquely qualifies her.
> 
> In a capitalist society, I think someone that has succeeded in the society at large is more uniquely qualified to judge it. Why can't I have an opinion that someone who worked their way through Community School, got a job, and put themselves through law school through their own hard work or perhaps joined the Military to earn money for College and then spent years as a judge isn't more qualified and better able to empathize and apply the law fairly/equally based on American ideals and values rather than race and sex? How is that extreme? In my experience that is more like the America I live in.


First of all, people have said a good deal more about her qualifications than that she's a formerly poor Latina woman. You should turn on the news. People are saying quite a bit more than that.

On that second point, we just have to agree to differ. For me, coming from a very poor background and doing well enough in school to win scholarships and excel at Princeton and Yale and have an impressive legal career simply is one way of succeeding in society.

There are other ways, of course. But refusing scholarships and subsidized loans and financial aid so you can say that you made it entirely without any help from anybody whatever? Somewhat perverse, but fine, I suppose, though I'm sure I don't find it unusually admirable.

Of course, taking a government job in the Army and getting tax-payer help with college is another story. I think those men and women deserve all the help they get.

I guess we just live in somewhat different Americas.


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## ksinc (May 30, 2005)

Lord Foppington said:


> First of all, people have said a good deal more about her qualifications than that she's a formerly poor Latina woman. You should turn on the news. People are saying quite a bit more than that.
> 
> *They really aren't. And no one in this thread has offered one either. Just repeating the characterization over and over is not justifying that characterization.*
> 
> ...


inline responses.


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## ksinc (May 30, 2005)

Quay said:


> Two wrongs don't indeed make anything but more wrong, but I suspect you'd find vigorous debate as to whether the rejection of Judge Bork was a wrong or not.
> 
> Seems a sensible thing, though, to allow the new President to pick his nominees unless there is something really bad about them, like Nixon's choices of Haynsworth and Carswell or George W. Bush's attempt to put Harriet Miers on the court.


Didn't you just make the case for why we should be disqualifying more nominees in the Senate? I don't know what the ratio is, but ignoring the purely political noise it seems way too easy to get people on SCOTUS. Perhaps we could all agree the bar should be raised a bit higher (regardless of who you think is the outlier on the current bench)?


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## PedanticTurkey (Jan 26, 2008)

You have to admit that it's amusing to be called a bigot for daring to question our president's transparently sexual-racially motivated court pick. 

But you do have to give him credit--no one can mention a better female, Hispanic choice. Isn't that what America is all about?


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## Quay (Mar 29, 2008)

ksinc said:


> Didn't you just make the case for why we should be disqualifying more nominees in the Senate?


Nah, must have been some other idiot here.



> I don't know what the ratio is, but ignoring the purely political noise it seems way too easy to get people on SCOTUS. Perhaps we could all agree the bar should be raised a bit higher (regardless of who you think is the outlier on the current bench)?


Appointment to the Supreme Court is generally regarded as the pinnacle of the legal profession by members of that profession. Since the number of lawyers in all areas of our public life has been increasing almost virally since the end of World War II, they've had a considerable impact on public opinion in getting the non-lawyers among us to nearly worship the people on the court or at minimum think that these appointees must be worthy of worship.

The Justices are civil servants first and last and when people begin to remember who they need to answer to things will change for the better, especially as we will stop getting so tangled up in lawyer's games and recognize that the content of one's character is supremely important and should be well considered along with possibly relevant qualifications such as schools attended and jobs held. One's title is less important that what one does with that title.

Indeed this line of reasoning, namely that only the best lawyers can become judges or Supreme Court appointees needs to be looked at more closely. If only the best of field X can be appointed to the top of field x then we can, for example, forget about people like Mitt Romney ever becoming President. Man is mainly in business, not politics! Wrong field, can't possibly be the right sort of person for the job no matter what his character or accomplishments. One term as a governor? Hardly matters. :icon_smile:


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## Grenadier (Dec 24, 2008)

pt4u67 said:


> Does she understand the concept of blind justice and the role of an independent judiciary. This seems like a silly question to ask someone who is a federal judge, what we need to know. If we don't like a legislator, we can get rid of that person within a few years. A judge, however, that acts as a de facto legislator is a different story. I saw a video of her about a month ago where she was joking about how policy is made at the federal appellate level. That concerns me but I'm willing to hold my powder until she is questioned.


It's nothing new to say that appellate courts set policy. Such has always been the case in American jurisprudence. This happens largely because the power to interpret the law is perhaps more important than the power to "write" the law and because John Marshall declared the federal courts have the power to interpret the Constitution, the supreme law of the land, and declare laws in contravention thereof.

If Congress (elected representatives) doesn't like how the federal courts interpret its statutes, Congress can change the statutes to be more clear. However, have you tried reading federal statutes? They're often utter gobbledygook and applying them to any specific situation can be difficult, to say the least. Justice Scalia has a nice saying that the only remaining legal fiction in American law is that Congress intends what it writes in its laws. At the very least, every member of the judiciary are more educated than most members of Congress.

Consider also that almost every executive branch agency creates law as well. For example, the United States Treasury's regulations, procedures, and rulings are more voluminous than the Internal Revenue Code. However, if Congress doesn't like the Treasury's (or the courts') interpretation of the Tax Code, it's free to change the Code or deny the Treasury the power to issue regulations, procedures, and rulings.


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## pt4u67 (Apr 27, 2006)

azlawstudent said:


> It's nothing new to say that appellate courts set policy. Such has always been the case in American jurisprudence. This happens largely because the power to interpret the law is perhaps more important than the power to "write" the law and because John Marshall declared the federal courts have the power to interpret the Constitution, the supreme law of the land, and declare laws in contravention thereof.
> 
> If Congress (elected representatives) doesn't like how the federal courts interpret its statutes, Congress can change the statutes to be more clear. However, have you tried reading federal statutes? They're often utter gobbledygook and applying them to any specific situation can be difficult, to say the least. Justice Scalia has a nice saying that the only remaining legal fiction in American law is that Congress intends what it writes in its laws. At the very least, every member of the judiciary are more educated than most members of Congress.
> 
> Consider also that almost every executive branch agency creates law as well. For example, the United States Treasury's regulations, procedures, and rulings are more voluminous than the Internal Revenue Code. However, if Congress doesn't like the Treasury's (or the courts') interpretation of the Tax Code, it's free to change the Code or deny the Treasury the power to issue regulations, procedures, and rulings.


She distinctly referred to policy. The court can also call on congress to re-write the law to be more clear. When courts rule on the legality of the definition of marriage, let's say, and declare that it is a violation of the constitution to deny same sex marriage, that's making policy. There is nothing in the constitution regarding the definition of marriage, but there is something in the constitution about states being able to define such things for themselves.

As to the executive branch, procedural rules and regulations are different are they not? A new administration can come in and change such things but they cannot change the tax code. Regulations and procedures are established within a legal framework as established by congress. They exist within it and not outside it.


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## Beau (Oct 4, 2007)

azlawstudent said:


> It's nothing new to say that appellate courts set policy. Such has always been the case in American jurisprudence. This happens largely because the power to interpret the law is perhaps more important than the power to "write" the law and because John Marshall declared the federal courts have the power to interpret the Constitution, the supreme law of the land, and declare laws in contravention thereof.
> 
> If Congress (elected representatives) doesn't like how the federal courts interpret its statutes, Congress can change the statutes to be more clear. However, have you tried reading federal statutes? They're often utter gobbledygook and applying them to any specific situation can be difficult, to say the least. Justice Scalia has a nice saying that the only remaining legal fiction in American law is that Congress intends what it writes in its laws. At the very least, every member of the judiciary are more educated than most members of Congress.
> 
> Consider also that almost every executive branch agency creates law as well. For example, the United States Treasury's regulations, procedures, and rulings are more voluminous than the Internal Revenue Code. However, if Congress doesn't like the Treasury's (or the courts') interpretation of the Tax Code, it's free to change the Code or deny the Treasury the power to issue regulations, procedures, and rulings.


I guess you are saying that the courts have to be the watchdogs for the legislative branch, since our legislators regularly write laws that violate the Constitution.


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## ksinc (May 30, 2005)

Quay said:


> Nah, must have been some other idiot here.
> 
> Appointment to the Supreme Court is generally regarded as the pinnacle of the legal profession by members of that profession. Since the number of lawyers in all areas of our public life has been increasing almost virally since the end of World War II, they've had a considerable impact on public opinion in getting the non-lawyers among us to nearly worship the people on the court or at minimum think that these appointees must be worthy of worship.
> 
> ...


or Obama?


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## Liberty Ship (Jan 26, 2006)

To be blunt, the truth is, the problem is, that she is a product of affirmative action and that is where her loyalty lies. Affirmative Action is NOT blind to race, sex, etc.,by definition. Therefore we can count on her justice not being blind, either. This is manifested in the firefighter decision and affirmed in her statements regarding the role of the judiciary. She sees everything through the "race/sex filter." UNQUALIFIED. She was probably unqualified for her previous positions, too, but Bush probably appointed her because of her sex and race to try to keep the affirmative action crowd off his back.

Affirmative action has been a major contributing factor in turning our meritocracy into an idiocracy where mediocrity is the politically correct and comfortable norm. It's time to say these things because we are going down the tubes and "minorities" with true merit are being judged as lacking because of the tsunami of unqualified minorities who exist simply as statistical place holders.


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## Lord Foppington (Feb 1, 2005)

ksinc says "You seem like you are offended..." etc. etc. etc.

I'm not offended at all. I disagree with you, and said why. In fact, I said quite mildly, "let's agree to differ." I still find your opinions hard to fathom, but they don't offend me.

As for living in different Americas, that's not the rhetoric I chose. You started talking about "the America I live in" and so on, so I picked up on it. 

To clarify: I live in an America where there is a public sector and a private sector, and a very long history of cooperation and sometimes overlap between them. I believe it's possible to achieve great things and succeed in either one, or both. I think people who distinguish themselves in the public sector earn their success.

As for Sotomayor and her qualifications, I'm not an expert on them. I suspect there will still be a lot to learn. When I turn on the news myself, I don't hear only that she was chosen because she was a formerly poor Hispanic woman. I hear people say she's brilliant, she's risen with distinction in her profession, she was appointed by G. H. W. Bush as a qualified candidate for a Federal judgeship. She's worked as a corporate litigator ("for high-profile clients like Ferrari," I just heard this morning--and I don't think corporations hire lawyers to defend their interests just because they're formerly poor Hispanic women). I heard her former law school professor talk enthusiastically on the radio about her brilliance.

All this is not decisive. But it leads me not to dismiss her out of hand as unqualified. To me, it all sounds impressive enough to warrant a hearing.


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## jackmccullough (May 10, 2006)

This discussion illustrates the mistake Obama appears to have made, and it's part of the old adage that your strengths are often your weaknesses. In short, Obama made the mistake of assuming that Republicans would act in good faith. The comments by some conservative Republicans in the national media and on this board about Sotomayor demonstrate that this assumption was clearly false.

What we have seen are gross caricatures of Sotomayor, a Republican appointee, as some kind of liberal activist without any evidence to support it; unfounded claims that her accomplishments, including her summa cum laude graduation from Princeton and editorship of the Yale law review, are simply the result of affirmative action; and a general reflexive opposition to this appointment before anyone has had the chance to read her opinions, review her academic record, or otherwise learn enough about her to arrive at an intelligent opinion.

From the limited amount I have read she is not particularly liberal, far from an activist, and well within the mainstream of American judicial thought. The most logical interpretation of the way Republicans have been squealing like a stuck pig over her nomination is that they're trying to scare Obama away from nominating a real liberal the next chance he gets. 

She'll be confirmed handily, and I hope it stiffens Obama's spine to appoint qualified liberals when he gets his next opportunity.


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## ksinc (May 30, 2005)

jackmccullough said:


> This discussion illustrates the mistake Obama appears to have made, and it's part of the old adage that your strengths are often your weaknesses. In short, Obama made the mistake of assuming that Republicans would act in good faith. The comments by some conservative Republicans in the national media and on this board about Sotomayor demonstrate that this assumption was clearly false.
> 
> What we have seen are gross caricatures of Sotomayor, a Republican appointee, as some kind of liberal activist without any evidence to support it; unfounded claims that her accomplishments, including her summa cum laude graduation from Princeton and editorship of the Yale law review, are simply the result of affirmative action; and a general reflexive opposition to* this appointment before anyone has had the chance to read her opinions,* *review her academic record, or otherwise learn enough about her to arrive at an intelligent opinion.*
> 
> ...


Shouldn't that be done BEFORE she's nominated; instead of bandwaggoning her and asking others to prove the negative?

Tell us, oh Jack, what landmark legal opinions of hers you have read, what you know of how she "earned" her scholarships, and of her impressive legal mind?

Contrary to your claim, the comments I have heard from Republican commentators are exactly the result of reading her opinions; they say she is #1 not particularly impressive; #2 does not thoroughly investigate the legal issues; #3 does not engage in rigourous legal debate with her peers; and #4 is clearly an activist. Since you have not by your own characterization reviewed the facts thoroughly how can you argue those points?

You're acting as though Obama simply said, here's a nice woman let's take a look at her and see if she would make a good Justice ... he's done far more than simply suggest she be considered; he's nominated her. In his short history of governing we can see one very consistent pattern - he has been consistently bad at selecting appointees and vetting them. It's bad faith to be skeptical after what we have seen and heard so far?



> While Democratic senators were quick to back Judge Sotomayor, Republicans took a wait-and-see approach, saying they will judge her by her answers at her confirmation hearing before the Senate Judiciary Committee.


https://www.washingtontimes.com/news/2009/may/27/60-reversal-of-sotomayor-rulings-gives-fodder-to-f/



> Sotomayor's personal story and her academic and legal credentials earn her respect from all quarters, but conservatives see plenty to criticize in her rulings and past statements. They describe her as a judicial activist who would put her feelings above the Constitution.


https://apnews.myway.com/article/20090527/D98EID6G1.html


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## ksinc (May 30, 2005)

Lord Foppington said:


> ksinc says "You seem like you are offended..." etc. etc. etc.
> 
> I'm not offended at all. I disagree with you, and said why. In fact, I said quite mildly, "let's agree to differ." I still find your opinions hard to fathom, but they don't offend me.
> 
> ...


Yes; you said you had to agree to disagree, but first you had to characterize my opinion as though it had intellectually offended you, but failed to justify the opinion you thought was not strange and extreme on intellectual/factual grounds.

Now that you have tried to do so, here's my view:

You bring up a good point that she is characterized as "brilliant", but I have not heard one person making that claim point to a decision or opinion of hers that was brilliant or brilliantly written. My opinion of some of these people is that they are making a qualified judgment; closeted racism. I hope not, but what standard did they use say for Chief Justice Roberts or Justice Alito or Justice Thomas; are these men also "brilliant?"

I would love to see an opinion of hers that someone is describing as brilliant if you have a reference. I have heard her described as "smart and tough like a NY Latina" or words to that effect - meaning street smart. I guess that is important on some level so +1 for her.

I had not heard about her corporate litigation experience. Other than a discussion about how as a judge she treated corporate cases. Did you hear anything about a big case she worked on for Ferrari? I don't remember an important Ferrari case before SCOTUS. I know of a guy that worked at a big Fortune company for about six years. He bounced around jobs because of the HR system and he was able to make internal lateral moves instead of being bounced out. He was, is, and will remain completely incompetent. He keeps getting jobs and lasting a while before he gets bounced for some goofy reason mostly because he has on his resume that he "worked" at such-and-such company. They verify his term of employment as required by law, but the guy is a complete screwup. So, I have a tendancy to discount "I worked there" unless someone tells me what they accomplished there. I have a good friend that worked at the same company - he says "I managed the construction of the entire national network" and not "I worked there." I worry she will turn out to be "brilliant" sort of like our Treasury Secretary was "brilliant" ...

So, you heard that GHWB appointed her, but didn't hear that GHWB did not select her at all, but that she was part of a negotiated deal with Senator Patrick Moynihan? Frankly, I like Moynihan a lot and his endorsement of her means more to me than the implied GHWB one. I think most people respect Senator Moynihan regardless of political views. Anyone saying GHWB appointed her as though that means something tangible to me also worries me. Now if GHWB stood up and said since appointing her I have been greatly impressed with her legal mind and her opinions such as the case of XYZ which demonstrates her judicial philosophy with which I agree; then I might give that some weight. As it is - the guy is sky-diving and playing golf. Love him, but having had to hear how everyone else he appointed is an idiot (Like Cheney), I'm shocked that his appointment of her is supposed to now mean something.

Her law professor? What do you expect him to say that they conferred a degree Summa Cum Laude on her, but she was unworthy?

Again; I am not arguing that she should be dismissed out of hand, I am questioning the as yet unjustified hoopla.

How many lawyers have worked for Ferrari and were liked by their professor? I mean geez, next you'll tell me her Mom thinks she is both smart and beautiful! :icon_smile_big:

The point is not the hearing, the point is the nomination. She's been selected. The hearing is largely moot.

What have you heard if anything that sounds worthy of selecting her over some of the other people mentioned? What I heard was that she was Latina. Is that really all we care about; Politics? If so maybe Meirs should have been allowed to go through (I disagree with this view I'm just saying it would be the linear equivalent.)


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## norton (Dec 18, 2008)

She's not particularly liberal? From a Second Amendment Foundation press release:

"Judge Sotomayor, a New York native, ruled on a Second Circuit Appeals Court panel that the Second Amendment is not a fundamental right and does not apply to the states in the case of _Maloney v. Cuomo_. This ruling is in direct conflict with a Ninth Circuit Court ruling in the _Nordyke v. King_ case in California that the Second Amendment is incorporated through the due process clause of the Fourteenth Amendment."

So I guess you're right, she's not particularly liberal when it comes to interpreting the Bill of Rights.

I have to say, I feel everything ksinc has had to say in this discussion has been spot on.


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## Grenadier (Dec 24, 2008)

pt4u67 said:


> She distinctly referred to policy. The court can also call on congress to re-write the law to be more clear. When courts rule on the legality of the definition of marriage, let's say, and declare that it is a violation of the constitution to deny same sex marriage, that's making policy. There is nothing in the constitution regarding the definition of marriage, but there is something in the constitution about states being able to define such things for themselves.
> 
> As to the executive branch, procedural rules and regulations are different are they not? A new administration can come in and change such things but they cannot change the tax code. Regulations and procedures are established within a legal framework as established by congress. They exist within it and not outside it.


The distinction between policy and law is a vague one. Divining just what was Congress' policy can be very difficult. The only thing you can get a majority of Congress to agree upon is that the bill they approved was insufficient. I suggest reading the Constitution - it's astoundingly broad and vague at times. Specifically, look at the Fourteenth Amendment, Section 1 - it's easy to see how it could be read to protect gay marriage.

Procedural rules and regulations have practically the same effect as judicial opinions in terms of "clarifying" statutes. It's hard to get a court to rule against an agency's interpretation of a statute, unless the agency's interpretation is clearly erroneous. In other instances, administrative regulations address specific issues never addressed by Congress' statutes. My point was merely to show that the executive branch is full of minor functionaries legislating from the desk.


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## PedanticTurkey (Jan 26, 2008)

The Constitution is often "vague" because it was written to _protect_ a myriad of pre-existing rights.

The problem with judicial activists is that they generally aren't interested in protecting old rights (like the right to property) that stand in the way of their leftist agenda, but they sure don't have a problem making up new rights out of whole cloth (like gay "marriage"). It's turning the constitution on its head.


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## Lord Foppington (Feb 1, 2005)

ksinc said:


> Yes; you said you had to agree to disagree, but first you had to characterize my opinion as though it had intellectually offended you, but failed to justify the opinion you thought was not strange and extreme on intellectual/factual grounds.


OK, fine, I regret having expressed offense without feeling offended in the least. I know that can happen. Rest assured I am not intellectually offended by your opinions.

As for assessing her qualifications, of course the opinions are flowing in. I don't expect any one to be decisive.

I read the New York Times, among other things. Here is one op-ed about her from today's paper:

https://www.nytimes.com/2009/05/27/opinion/27magliocca.html?ref=opinion

Here's the burden of the piece, by a self-described conservative colleague of Sotomayor: "While many have discussed her underprivileged background as a strong point for her confirmation, I think that her experiences as a lawyer and a judge are more relevant." Of course, there's no reason not to be skeptical about this person's perspective.

Another interesting analysis from the NYT:

https://www.nytimes.com/2009/05/27/us/politics/27judge.html?hp

The headline is "Sotomayor's Opinions are Exhaustive But Often Narrow," and the piece treats many interesting positive and negative elements of her career. Among the latter are questions about her handling of the Connecticut firefighters' case, which will be thoroughly vetted, and which I think it's more than fair to question.

A couple of other things. Would I go to the wall and say Sotomayor is the most qualified jurist in the whole country to be on the Supreme Court? I wouldn't even know how to answer that question. Lots of people have lots of different qualifications, and weighing them is a complicated affair, not to be pronounced on dogmatically. I do feel, so far, that she's a perfectly credible candidate and ought not to be disqualified simply because she's earned scholarships and is a Hispanic woman.

Also, for what it's worth, I'm not scandalized by the fact that there is a political element to this decision. Obama is, among other things, a politician, as was every other president who appointed a judge. Sorry friends, but 'twas ever thus. It's perfectly reasonable not to like the particular politics that goes into a particular appointment. But to claim that all political considerations ought to be magically expunged from a president's judgments about this or anything else seems at best naive. We don't live in Star Bright Park, we live in reality, and part of that reality is political.


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## PedanticTurkey (Jan 26, 2008)

Of course she shouldn't be "disqualified" because she's a Hispanic woman. But does anyone seriously believe that she's the most qualified person in the country for the post? Give me a break! Lawyer? No way. How about the most qualified woman? The most qualified Hispanic?

Put them all together as requirements and she starts to look like a top contender. But is that how the president should pick justices? 

Roberts wrote (for the court, IIRC) a while back that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Compare that Sotomayor's comments and Obama's obvious racial/sexual pandering. What kind of leadership is this?


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## young guy (Jan 6, 2005)

PedanticTurkey said:


> What kind of leadership is this?


the kind that won the last election


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## Asterix (Jun 7, 2005)

ksinc said:


> Yes; you said you had to agree to disagree, but first you had to characterize my opinion as though it had intellectually offended you, but failed to justify the opinion you thought was not strange and extreme on intellectual/factual grounds.
> 
> Now that you have tried to do so, here's my view:
> 
> ...


Your responses have so far been on point! Keep up the good work!


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## Stringfellow (Jun 19, 2008)

norton said:


> She's not particularly liberal? From a Second Amendment Foundation press release:
> 
> "Judge Sotomayor, a New York native, ruled on a Second Circuit Appeals Court panel that the Second Amendment is not a fundamental right and does not apply to the states in the case of _Maloney v. Cuomo_. This ruling is in direct conflict with a Ninth Circuit Court ruling in the _Nordyke v. King_ case in California that the Second Amendment is incorporated through the due process clause of the Fourteenth Amendment."
> 
> ...


As someone who is currently studying for 2 bar exams, I can tell with certainty that no one knows if the 2nd amendment applies to the states (though if it comes up on the exam I am to say it does not). Recently, the Supreme Court held the 2nd amendment is an individual right, but the case was against D.C. Since D.C. is not a state, the Court had no opportunity to decide if the 2nd amendment applied to the states. Thank you BARBRI!!!!

In other words, the 2nd and 9th circuits are both guessing. I don't like her as a pick, but I would not use this as evidence that she is liberal.


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## norton (Dec 18, 2008)

Stringfellow said:


> As someone who is currently studying for 2 bar exams, I can tell with certainty that no one knows if the 2nd amendment applies to the states (though if it comes up on the exam I am to say it does not). Recently, the Supreme Court held the 2nd amendment is an individual right, but the case was against D.C. Since D.C. is not a state, the Court had no opportunity to decide if the 2nd amendment applied to the states. Thank you BARBRI!!!!


I understand that, what I was saying is that it is evidence that she is not liberal in interpreting the second amendment, and by extension the Bill of Rights. Since it is an issue that has not been decided by the Supreme Court she could have decided either way, instead she interpreted it in a way that creates a split with the Ninth Circuit.

Also, I meant liberal as an antonym to restrictive. Many people forget that those we now call liberals are actually quite restrictive when it comes to recognizing individual rights.


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## ksinc (May 30, 2005)

Lord Foppington said:


> OK, fine, I regret having expressed offense without feeling offended in the least. I know that can happen. Rest assured I am not intellectually offended by your opinions.
> 
> As for assessing her qualifications, of course the opinions are flowing in. I don't expect any one to be decisive.
> 
> ...


Those were both interesting articles. Thanks for the links to them. I agree with the quote of the former intern. I wish examples like this would make the left stop presenting someone as valuable because they are a latina and instead focus on their contributions. If indeed this lady has made many she has been ill-served by those trying to help themselves at her expense. I have no qualms with an honest, thinking liberal. If that is all she turns out to be I think that's kosher.


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## PedanticTurkey (Jan 26, 2008)

Stringfellow said:


> As someone who is currently studying for 2 bar exams, I can tell with certainty that no one knows if the 2nd amendment applies to the states (though if it comes up on the exam I am to say it does not). Recently, the Supreme Court held the 2nd amendment is an individual right, but the case was against D.C. Since D.C. is not a state, the Court had no opportunity to decide if the 2nd amendment applied to the states. Thank you BARBRI!!!!
> 
> In other words, the 2nd and 9th circuits are both guessing. I don't like her as a pick, but I would not use this as evidence that she is liberal.


You've got to be kidding me. She "just guesses" on the second amendment--and happens to reach the hard-left position, farther left than the freakin' 9th circuit, and that's not evidence of her being a leftist?

Newsflash: when she's on the damned court she's going to have to make decisions like this all the time. It's what they do.


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## Pentheos (Jun 30, 2008)

Stringfellow said:


> In other words, the 2nd and 9th circuits are both guessing. I don't like her as a pick, but I would not use this as evidence that she is liberal.


Her nomination by BO is all the evidence we need about what she is.


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## MichaelS (Nov 14, 2005)

PedanticTurkey said:


> Of course she shouldn't be "disqualified" because she's a Hispanic woman. But does anyone seriously believe that she's the most qualified person in the country for the post? Give me a break! Lawyer? No way. How about the most qualified woman? The most qualified Hispanic?
> 
> Put them all together as requirements and she starts to look like a top contender. But is that how the president should pick justices?
> 
> Roberts wrote (for the court, IIRC) a while back that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Compare that Sotomayor's comments and Obama's obvious racial/sexual pandering. What kind of leadership is this?


Can you really compare her to Clarence Thomas who was more worried about a fantasy pubic hair on his coke can than a valid legal argument?
After reading the unintelligible right wing rants on this page, I realize why I can no longer stomach visiting this web site. Start thinking for yourselves and stop parroting Rush, Dick, Newt, and others who are so far removed from reality as to belong in institutions. We are not alone in this world and have lost any moral ground we may have had by our xenophobic, self centered, morphiated , Regan dominated view of the world. Our many veterans of wars fought to preserve liberty are likely spinning in their graves with the idiocy that our once great country has perpetrated over the last 25 years.


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## Pentheos (Jun 30, 2008)

MichaelS said:


> I realize why I can no longer stomach visiting this web site.


Well, bye.


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## Liberty Ship (Jan 26, 2006)

MichaelS said:


> Can you really compare her to Clarence Thomas who was more worried about a fantasy pubic hair on his coke can than a valid legal argument?
> After reading the unintelligible right wing rants on this page, I realize why I can no longer stomach visiting this web site. Start thinking for yourselves and stop parroting Rush, Dick, Newt, and others who are so far removed from reality as to belong in institutions. We are not alone in this world and have lost any moral ground we may have had by our xenophobic, self centered, morphiated , Regan dominated view of the world. Our many veterans of wars fought to preserve liberty are likely spinning in their graves with the idiocy that our once great country has perpetrated over the last 25 years.


We are thinking for ourselves -- a quality that is beyond the ken of Liberals. Why is it that when confronted with facts, all Liberals can seem to do is accuse someone of "parroting?" Playground debate tactics, learned in the "pre-school of hard knocks," and deployed by people who never grew beyond that. Debating a Liberal is like arguing with Pee Wee Herman.

Almost all veterans who I know are totally disgusted at the fact that a herd of mindless idiots cast "feel good" votes and put an inexperienced, incompetent, "college socialist" at the helm. And while I can't speak for the dead, the veterans I knew who are now dead are, I suspect, spinning in their graves because Obama is in the White house.

Most Obama supporters are too stupid and too ignorant to understand the damage they have done; and when the consequences of their actions are dished up to us all by history, they will intellectually be unable to relate the cause to the effect. Pathetic.

See ya!


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## PedanticTurkey (Jan 26, 2008)

MichaelS said:


> Can you really compare her to Clarence Thomas who was more worried about a fantasy pubic hair on his coke can than a valid legal argument?


That's amusing, considering that he wasn't a judge at the time that's alleged to have happened.

Now that said, it must really drive you nuts that these "right wing rants" are talking about legitimate concerns instead of scandalous accusations.

Anyway, don't let the door hit you in the ass on the way out.


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## Acct2000 (Sep 24, 2005)

Interesting - - - -

Please leave inviting people to leave to site managers. While I don't agree with much of Michael S. and I usually don't interfere in the interchange much, I found this post to be really nasty. I won't do anything about it, but I would suggest you leave well enough alone at this point.


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## ksinc (May 30, 2005)

> Judge Sotomayor's belief is that a "Latina woman" is by definition a superior judge to a "white male" because she has had more "richness" in her struggle. The danger inherent in this judicial view is that the law isn't what the Constitution says but whatever the judge in the "richness" of her experience comes to believe it should be.


https://online.wsj.com/article/SB124338457658756731.html


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## obiwan (Feb 2, 2007)

In a speech as a Court of Appeals judge, she said, "The court is where policy is made." Her opinions have followed that approach. What she was referring to was that public policy was made by the Court of Appeals, not by the Legislature.
In a recent case, _Ricci v. DeStefano_, Sotomayor ruled that reverse racism was to be used in making decisions. She ruled in favor of a city that used racially discriminatory practices to deny promotions to firefighters. *In Ricci, an applicant to be a firefighter scored the highest on the test but was denied the job because he was not black. *
According to Judge Jose Cabranes, Sotomayor's colleague, Sotomayor's opinion "contains no reference whatsoever to the constitutional claims at the core of this case," and its "perfunctory disposition rests uneasily with the weighty issues presented by this appeal." Even the liberal Washington Post columnist Richard Cohen expressed disappointment with the case, stating, "Ricci is not just a legal case but a man who has been deprived of the pursuit of happiness on account of race."
Sotomayor readily admits that she applies her feelings and personal politics when deciding cases. In a 2002 speech given at Berkeley, she said she believes it is appropriate for judges to consider their "experiences as women and people of color," which she believes should "affect our decisions." She went on to say in that same speech, "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."


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## Stringfellow (Jun 19, 2008)

PedanticTurkey said:


> You've got to be kidding me. She "just guesses" on the second amendment--and happens to reach the hard-left position, farther left than the freakin' 9th circuit, and that's not evidence of her being a leftist?
> 
> Newsflash: when she's on the damned court she's going to have to make decisions like this all the time. It's what they do.


You're barking at the wrong guy. I don't like her either. But appeals and Supreme Court judges guess at non-black letter law. Does the 2nd amendment apply to the states? I don't know. Neither do you. Why? The Supreme Court hasn't told us (we can have opinions but they are not law). So if we have to decide, we guess. Is the prosecutor using evidence of past crimes to show a propensity to commit crime or to show a common plan? Justice X doesn't know, so he guesses.

I would have picked Gov. Rendell or Hilary, but that's just me.


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## PedanticTurkey (Jan 26, 2008)

Stringfellow said:


> You're barking at the wrong guy. I don't like her either. But appeals and Supreme Court judges guess at non-black letter law. Does the 2nd amendment apply to the states? I don't know. Neither do you. Why? The Supreme Court hasn't told us (we can have opinions but they are not law). So if we have to decide, we guess. Is the prosecutor using evidence of past crimes to show a propensity to commit crime or to show a common plan? Justice X doesn't know, so he guesses.


This is just wrong on so many levels. Judges don't "guess"; they hold. And they are supposed to do it based on precedent and principles, established law, even if there's no supreme court decision directly on point. It's about as far from "guessing" as can be. And I hate to pick on you, but the opinions of the circuits ARE the law, until they're overturned by the supreme court. And your example about prior bad acts is generally a ROE issue, and as far as I know every state has their own rules that aren't determined by the SCOTUS.

Anyway, the law as to why a constitutional right should be incorporated against the states is very well established, and a plain reading of _Heller_ makes it almost certain--unless you're a left-wing activist judge, I guess.


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## PedanticTurkey (Jan 26, 2008)

Then again, maybe I'm just not a Latina so I can never understand why plain English doesn't hav eto mean what it appears to say, if I don't agree with it...


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## jackmccullough (May 10, 2006)

obiwan said:


> In a speech as a Court of Appeals judge, she said, "The court is where policy is made." Her opinions have followed that approach. What she was referring to was that public policy was made by the Court of Appeals, not by the Legislature.
> 
> Sotomayor readily admits that she applies her feelings and personal politics when deciding cases. In a 2002 speech given at Berkeley, she said she believes it is appropriate for judges to consider their "experiences as women and people of color," which she believes should "affect our decisions." She went on to say in that same speech, "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."


And you think Scalia, Roberts, and Alito aren't simply imposing their own political views?

No, you really don't, but it's convenient for you to pretend to believe that.

By your own admission, one difference we already know between Sotomayor and Roberts is that she's honest. He said he would neutrally apply the law. In other words, when he was a candidate for confirmation, he lied. Nothing we can do about it now, but don't pretend otherwise.


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## Quay (Mar 29, 2008)

jackmccullough said:


> And you think Scalia, Roberts, and Alito aren't simply imposing their own political views?...


I wonder if it is a coincidence or universal joke that an anagram for Scalia, Roberts and Alito is "Alabaster Solicitor."

The white lawyer, all in gypsum and calcified to anything but the dull thud of glacial thought.

Gotta admire Roberts, though. First walk and talk as a moderate, then once ensconced write as a radical. Pretty smooth operator he is.


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## Scoundrel (Oct 30, 2007)

Cool. Good on her.


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## Stringfellow (Jun 19, 2008)

PedanticTurkey said:


> This is just wrong on so many levels. Judges don't "guess"; they hold. And they are supposed to do it based on precedent and principles, established law, even if there's no supreme court decision directly on point. It's about as far from "guessing" as can be. And I hate to pick on you, but the opinions of the circuits ARE the law, until they're overturned by the supreme court. And your example about prior bad acts is generally a ROE issue, and as far as I know every state has their own rules that aren't determined by the SCOTUS.
> 
> Anyway, the law as to why a constitutional right should be incorporated against the states is very well established, and a plain reading of _Heller_ makes it almost certain--unless you're a left-wing activist judge, I guess.


I think the cases we were talking about were pre-Heller, but keep trying. And judges guess. Their holdings are guesses. It's hard to KNOW if someone is telling the truth or not. They guess. It's hard to KNOW why a party is introducing evidence. They guess. It's hard to KNOW if a will satisfies the statute of wills (were there really 2 witnesses? That one signature looks a little funny). They guess. If only we could all be a certain as you.


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## radix023 (May 3, 2007)

*Nordyke, 2nd incorporation post-Heller*

You guys are talking past each other. Please read Nordyke:
https://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf

That's pretty darn tightly reasoned. The fact pattern presentation mirrors Heller very closely. It's hard to see how Heller can be valid and Nordyke not.


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## PedanticTurkey (Jan 26, 2008)

Stringfellow said:


> I think the cases we were talking about were pre-Heller, but keep trying.


The 9th circuit held the 2d amendment to be incorporated against the states before Heller? No way. And "keep trying"? LOL.



> And judges guess. Their holdings are guesses. It's hard to KNOW if someone is telling the truth or not. They guess. It's hard to KNOW why a party is introducing evidence. They guess. It's hard to KNOW if a will satisfies the statute of wills (were there really 2 witnesses? That one signature looks a little funny). They guess. If only we could all be a certain as you.


Now you're confusing findings of fact with holdings of law. When cases get to the federal circuits or the SCOTUS the facts are almost always decided. Appellate courts don't find facts; they say what the facts mean in the context of the law.


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## Mike Petrik (Jul 5, 2005)

Quay said:


> I wonder if it is a coincidence or universal joke that an anagram for Scalia, Roberts and Alito is "Alabaster Solicitor."
> 
> The white lawyer, all in gypsum and calcified to anything but the dull thud of glacial thought.
> 
> Gotta admire Roberts, though. First walk and talk as a moderate, then once ensconced write as a radical. Pretty smooth operator he is.


Roberts a radical? What a remarkable assertion. Would you be good enough to list the opinions you are talking about and briefly explain why they are radical?


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## smujd (Mar 18, 2008)

jackmccullough said:


> And you think Scalia, Roberts, and Alito aren't simply imposing their own political views?
> 
> No, you really don't, but it's convenient for you to pretend to believe that.
> 
> By your own admission, one difference we already know between Sotomayor and Roberts is that she's honest. He said he would neutrally apply the law. In other words, when he was a candidate for confirmation, he lied. Nothing we can do about it now, but don't pretend otherwise.


Quite a claim. Support for your assertion that Roberts does not neutrally apply the law?


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## Quay (Mar 29, 2008)

Mike Petrik said:


> Roberts a radical? What a remarkable assertion. Would you be good enough to list the opinions you are talking about and briefly explain why they are radical?


For the cute and quick, one only needs to look at his public, on-the-fly re-writing of the Oath of Office for the new President. 

But for a more concrete example of one who is acting in a radical ("relating to or affecting the fundamental nature of something; far-reaching or thorough") way just look at what he was up to with and around _Riley v. Kennedy_ and his active interest in fundamentally changing the way Section 5 of the Voting Rights Act has been used_. _Here he advanced a radical reading that was at odds with Justice Department regulations and policies, decades of practice in interpreting the law, and the will of Congress as expressed in congressional renewals of the Voting Rights Act without making any change in the relevant language of the section at issue in the suit. Of course the Court avoided his novel theories, at least for now, in the decision. But he'll be around for a while yet it seems and will have plenty of time to continue to shape things more to his liking.

As those here who complain about "activist judges" would note, he's not conserving anything here, he's promoting radical and narrowing interpretations of things.


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## PedanticTurkey (Jan 26, 2008)

Riley v. Kennedy, huh?


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## norton (Dec 18, 2008)

Quay said:


> As those here who complain about "activist judges" would note, he's not conserving anything here, he's promoting radical and narrowing interpretations of things.


Are you saying that because Roberts, or for that matter Scalia or Ginzburg, sometimes make "activist" decisions its o.k. to appoint other judges who are likely to decide cases based on their social or political beliefs?

I think thats just wrong. I don't approve of a Supreme Court judge interpreting the Constitution in ways other than how it was understood at the time of its signing and I think we should only appoint judges who indicate that they intend to do preserve the original meaning of the Constitution. The fact that some sitting judges fail to live up to that standard should in no way justify appointing judges who believe in a "living" Constitution.


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## Mike Petrik (Jul 5, 2005)

Quay said:


> For the cute and quick, one only needs to look at his public, on-the-fly re-writing of the Oath of Office for the new President.
> 
> But for a more concrete example of one who is acting in a radical ("relating to or affecting the fundamental nature of something; far-reaching or thorough") way just look at what he was up to with and around _Riley v. Kennedy_ and his active interest in fundamentally changing the way Section 5 of the Voting Rights Act has been used_. _Here he advanced a radical reading that was at odds with Justice Department regulations and policies, decades of practice in interpreting the law, and the will of Congress as expressed in congressional renewals of the Voting Rights Act without making any change in the relevant language of the section at issue in the suit. Of course the Court avoided his novel theories, at least for now, in the decision. But he'll be around for a while yet it seems and will have plenty of time to continue to shape things more to his liking.
> 
> As those here who complain about "activist judges" would note, he's not conserving anything here, he's promoting radical and narrowing interpretations of things.


Quay,

An activist judge is one who does what he prefers at the expense of the legislative language before him. It most certainly is not a judge who seeks to decide cases by referring to the language of the governing statute rather than the language of dicta or regulatory pronouncements. Those who consider Robert's line of questioning to be radical are plainly outcome driven. See Rick Hasen's https://electionlawblog.org/archives/010809.html. I wish to express gratitude to Professor Hasen -- who uses the term "radical" in describing Robert's reasoning -- for printing the relevant portion of the oral argument, so readers can decide for themselves. The problem, Quay, is that we have different definitions of "radical." Mine describes judges who decide cases based on their policy preferences rather than legislative language, and thereby usurp the lawmaking role of the legislative branch. Yours describes judges whose opinions reach decisions that are not in accord with your political preferences.

The line of questions posed by Justice Roberts suggests an interpretation that is faithful to the remarkably plain language of the Act itself, even if it is at the expense of the interpretations of the Justice Department, prior court dicta, and perhaps conventional wisdom. It reminds me of a case I handled a few years ago. The Internal Revenue Code imposes an excise tax on providers of certain long distance telephone services the charges for which "vary by time and distance." This law was enacted when the cost for long distance and toll service was universally a function of both time and distance. Eventually, however, technology and markets developed such that most carriers charged by reference to time only. Nonetheless, all carriers continued to unthinkingly remit the excise tax anyway. Some time around 2000 a mid-tier telecom client who charged by reference to time only asked me for a formal legal opinion as to whether tax was due. I opined that it was not, even though the IRS and apparently all large carriers believed otherwise. My opinion was criticized by 2 of the large national accounting firms, who mandated that my client reserve in full for the tax regardless of my legal opinion. Eventually, the issue made its way to several federal courts in several jurisdictions, and my view prevailed -- rather easily I might add. These courts reached the rather unremarkable conclusion that "and" meant "and," notwithstanding the presumably discomforting result that the tax was essentially evicerated. And they were right to do so.

The American people have a right (a due process right to be precise) to rely on a law's plain language. Roberts apparently thinks so too. You apparently think that is a radical notion. On that we just disagree.


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## Quay (Mar 29, 2008)

norton said:


> Are you saying that because Roberts, or for that matter Scalia or Ginzburg, sometimes make "activist" decisions its o.k. to appoint other judges who are likely to decide cases based on their social or political beliefs?


Of course not. Yet, how does anyone make a decision that is not in somewhat based in who they are, which includes their social and political beliefs? Chief Justice Roberts famously used the word "sordid" in a decision to describe his view of a situation and what is "sordid" if not a word heavily freighted with social, moral and thus personal beliefs?



> I think thats just wrong. I don't approve of a Supreme Court judge interpreting the Constitution in ways other than how it was understood at the time of its signing and I think we should only appoint judges who indicate that they intend to do preserve the original meaning of the Constitution. The fact that some sitting judges fail to live up to that standard should in no way justify appointing judges who believe in a "living" Constitution.


You sound like, in terms of modern legal theories, a strict Originalist. Are you in favor of any new things that have come along since the original Constitution was written? The Bill of Rights? Women voting? Emancipated slaves?

Preserving the original meaning of the times of the late 18th century surely means we must reverse all this "living" that has gone on since then, at least according to Originalist thinking. Perhaps this is what Roberts is trying to do?


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## Quay (Mar 29, 2008)

Here's something to think about: who said this?

"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. [...]
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."

Judge Sotomayor? Nope.

Samuel Alito, in his confirmation hearings.

So why is it bad for her to say similar things but OK for Alito to have said this?


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## Mike Petrik (Jul 5, 2005)

Quay said:


> Here's something to think about: who said this?
> 
> "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. [...]
> 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."
> ...


Not OK for Alito in my opinion. When acting as a fact-finder, a judge is permitted to and should determine facts mindful of experiences that are sufficiently relevant to shed light on the truth. When interpreting the law, a judge should faithfully construe the legislation before him, independent of any policy bias that may be informed by his life experiences.
It seems to me that your bait and switch accusation is more relevant to Alito than Roberts. Alito apparently misled the Senate (I'm assuming the quote is from the confirmation hearnings) by suggesting he would cheat when deciding cases, when he really had no intention of cheating. For shame!


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## norton (Dec 18, 2008)

Quay said:


> You sound like, in terms of modern legal theories, a strict Originalist. Are you in favor of any new things that have come along since the original Constitution was written? The Bill of Rights? Women voting? Emancipated slaves?
> 
> Preserving the original meaning of the times of the late 18th century surely means we must reverse all this "living" that has gone on since then, at least according to Originalist thinking. Perhaps this is what Roberts is trying to do?


Since the constitution contains procedures for approving amendments and those examples you gave were all amendments that went through the proper constitutional process, I have absolutely no problems with any of them. I personally would like to see the sixteenth amendment repealed, but only through the process provided in article five of the constitution, not by a federal judge.

Are you suggesting that the supreme court should have been the process for instituting the Bill of Rights, women's suffrage and emancipating the slaves? Under a living constitution theory that could have been done but would it have been as widely accepted by the population? The problem with a living view of the constitution is that the law of the land is literally subject to the whim of 9 unelected judges. What you then have, in effect, is a small council who has the power to make up laws as they go along and so are literally above the law. You may agree with their decisions, but if you don't you have no recourse. This is what our system of government was set up to avoid.

The judges on the Supreme Court are subject to the same law of the land as are you and I. Their job necessitates that they interpret and apply the Constitution, but unless they do that within consistent guidelines they end up making up the laws as they go along.


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## norton (Dec 18, 2008)

Quay said:


> Here's something to think about: who said this?
> 
> "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. [...]
> 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."
> ...


Why do you keep going back to a "well a conservative did it so its ok for a liberal to do it" line of reasoning? Can't you come up with a better rational for a judge to decide the law based on the outcome they'd like to achieve in a specific case?

I don't want either a liberal or conservative to do it.


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## jackmccullough (May 10, 2006)

norton said:


> Why do you keep going back to a "well a conservative did it so its ok for a liberal to do it" line of reasoning?


Maybe because it demonstrates that conservatives are hypocrites when they claim they don't want judges to do it.



norton said:


> I don't want either a liberal or conservative to do it.


If this is true, then you are unique among conservatives. And I mean unique in its true meaning: you are literally the only conservative who truly thinks this way.


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## Mike Petrik (Jul 5, 2005)

norton said:


> Why do you keep going back to a "well a conservative did it so its ok for a liberal to do it" line of reasoning? Can't you come up with a better rational for a judge to decide the law based on the outcome they'd like to achieve in a specific case?
> 
> I don't want either a liberal or conservative to do it.


I agree completely. I do think that liberals are the more frequent offenders -- it is no accident that constitutional law scholar Erwin Chemerinsky, who argues that judges should interpret the constitution to allow for any result they deem the most socially desirable, is a liberal. My complaint is not with decisions that result in outcomes I disfavor politically, but with decisions that are grounded in dishonesty and policy preference. If Quay et al can show me a decision by Roberts or Alito etc that trifles with the law in favor of politics or policy, then I am pleased to join his criticism, regardless of my policy preferences. Congress and state legislatures pass all kinds of laws every year that I disagree with. With rare exception, they are not unconstitutional, and I do not expect judges to substitute their judgment, or mine, for that of these elected lawmakers.


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## norton (Dec 18, 2008)

jackmccullough said:


> Maybe because it demonstrates that conservatives are hypocrites when they claim they don't want judges to do it.


You sure must know an awful lot about conservatives.



jackmccullough said:


> If this is true, then you are unique among conservatives. And I mean unique in its true meaning: you are literally the only conservative who truly thinks this way.


Actually, I think the liberal/conservative antinomy is passe. The real split is statist/libertarian, a fact that political partisans haven't realized yet.


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## Mike Petrik (Jul 5, 2005)

jackmccullough said:


> Maybe because it demonstrates that conservatives are hypocrites when they claim they don't want judges to do it.
> 
> If this is true, then you are unique among conservatives. And I mean unique in its true meaning: you are literally the only conservative who truly thinks this way.


Jack, I am not a hypocrite. But the fact that you state so much makes you an ass.


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## norton (Dec 18, 2008)

Mike Petrik said:


> I agree completely. I do think that liberals are the more frequent offenders -- it is no accident that constitutional law scholar Erwin Chemerinsky, who argues that judges should interpret the constitution to allow for any result they deem the most socially desirable, is a liberal. My complaint is not with decisions that result in outcomes I disfavor politically, but with decisions that are grounded in dishonesty and policy preference. If Quay et al can show me a decision by Roberts or Alito etc that trifles with the law in favor of politics or policy, then I am pleased to join his criticism, regardless of my policy preferences. Congress and state legislatures pass all kinds of laws every year that I disagree with. With rare exception, they are not unconstitutional, and I do not expect judges to substitute their judgment, or mine, for that of these elected lawmakers.


I do not have the cite, but I remember a decision by Scalia in Gonzalez vs. Raich in the ninth circuit a couple years ago that seemed to be outcome based and contrary to his usual interpretations. He seemed to have a much more restrictive interpretation of the ninth amendment than usual, if I recall correctly.


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## Mike Petrik (Jul 5, 2005)

norton said:


> I do not have the cite, but I remember a decision by Scalia in Gonzalez vs. Raich in the ninth circuit a couple years ago that seemed to be outcome based and contrary to his usual interpretations. He seemed to have a much more restrictive interpretation of the ninth amendment than usual, if I recall correctly.


Fair enough. If I can make the time, I'll read it this weekend.
Cheers,
Mike


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## PedanticTurkey (Jan 26, 2008)

_Raich_ was a commerce clause case. Scalia's opinion was disappointing but it wasn't inconsistent with his other votes. At least he said it wasn't.

Personally I think that case was wrongly decided, but that's Marshall's fault, not Scalia's.


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## Stringfellow (Jun 19, 2008)

PedanticTurkey said:


> _Raich_ was a commerce clause case. Scalia's opinion was disappointing but it wasn't inconsistent with his other votes. At least he said it wasn't.
> 
> Personally I think that case was wrongly decided, but that's Marshall's fault, not Scalia's.


Nothing is Scalia's fault, not even his own crappy opinions!

Compare Raich to Lopez and one quickly sees just how "active" the conservative justices are. They like guns and don't like pot. That's how they hold regardless of legal philosophy.


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## Quay (Mar 29, 2008)

Mike Petrik said:


> ...
> It seems to me that your bait and switch accusation is more relevant to Alito than Roberts. Alito apparently misled the Senate (I'm assuming the quote is from the confirmation hearnings) by suggesting he would cheat when deciding cases, when he really had no intention of cheating. For shame!


Don't go pressing your methods on me, 'cause as a member of the bar you've got more bait than every fishing shop on every lake and certainly more switch than even Edison could have imagined, which you've just proved in a completely lovable and lawyerly way by trying to show Alito is a backwards saint. :icon_smile_wink:


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## Quay (Mar 29, 2008)

norton said:


> Why do you keep going back to a "well a conservative did it so its ok for a liberal to do it" line of reasoning?...


I have never adhered to that speciousness and that was not what the example showed, but rather your own gloss on it.


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## Quay (Mar 29, 2008)

Mike Petrik said:


> ... The problem, Quay, is that we have different definitions of "radical." Mine describes judges who decide cases based on their policy preferences rather than legislative language, and thereby usurp the lawmaking role of the legislative branch. Yours describes judges whose opinions reach decisions that are not in accord with your political preferences.


Are you aware of your bias here, that you believe your position to be somehow better than what you think mine is? You uphold a external virtue with no solidity against the apparent view of someone you believe to understand at least on a political level. Aether and inference, both holding very little.



> The American people have a right (a due process right to be precise) to rely on a law's plain language. Roberts apparently thinks so too. You apparently think that is a radical notion. On that we just disagree.


We certainly disagree, but it goes back to your attempt to frame this debate on your own terms, the work of framing and the terms certainly part and parcel of your life's work, and a successful life at that*, but terms in which there exist base assumptions about the very nature of legal and political realities that would probably be beyond the scope of this thread to discuss and ultimately, probably making discordant and fade-to-black notes.

There seems to be a dead horse about, if not a dead cow, and I am reminded of some of A.E. Housman's words when one finds the cows dying from such tunes:

"TERENCE, this is stupid stuff: 
You eat your victuals fast enough; 
There can't be much amiss, 'tis clear, 
To see the rate you drink your beer. 
But oh, good Lord, the verse you make, 
It gives a chap the belly-ache. 
The cow, the old cow, she is dead; 
It sleeps well, the horned head: 
We poor lads, 'tis our turn now 
To hear such tunes as killed the cow. 
Pretty friendship 'tis to rhyme 
Your friends to death before their time 
Moping melancholy mad: 
Come, pipe a tune to dance to, lad."

*This is based on the possibly dangerous internet assumption that you are who you say you are, long a feature of common law and common sense but wildly veil-able in this world of electronic messages.


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## Mike Petrik (Jul 5, 2005)

Quay said:


> Don't go pressing your methods on me, 'cause as a member of the bar you've got more bait than every fishing shop on every lake and certainly more switch than even Edison could have imagined, which you've just proved in a completely lovable and lawyerly way by trying to show Alito is a backwards saint. :icon_smile_wink:


Ah, you misunderstand. I wasn't accusing you of baiting and switching. I was referring to your accusation of Roberts essentially doing so.


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## Mike Petrik (Jul 5, 2005)

Quay said:


> Are you aware of your bias here, that you believe your position to be somehow better than what you think mine is? You uphold a external virtue with no solidity against the apparent view of someone you believe to understand at least on a political level. Aether and inference, both holding very little.
> 
> We certainly disagree, but it goes back to your attempt to frame this debate on your own terms, the work of framing and the terms certainly part and parcel of your life's work, and a successful life at that*, but terms in which there exist base assumptions about the very nature of legal and political realities that would probably be beyond the scope of this thread to discuss and ultimately, probably making discordant and fade-to-black notes.
> 
> ...


I am he whom you google. A few thoughts:

1. Your opening accusation is fair (assuming I understand it), but my "bias" is not groundless. As a general matter my liberal friends and colleagues, including those in academia, are simply much more receptive to the proposition that courts should "use law" to make social policy. Some like Chemerinsky take that proposition to its logical conclusion. Others are more pragamatic and simply adhere to the notion that a more flexible understanding of language can fairly and legitimately allow them to inject their policy biases. The real reason that liberals so rarely endorse principles of construction such as "plain meaning" or "original intent" is not so much that they understand these principles as yielding noxious results -- sometimes they do and sometimes they don't. The real reason is that they are uncomfortable with the idea of neutral principles of construction since they make it more difficult to do their work -- which is to make policy from the bench. And as a specific matter, I inferred from your reference to "Riley v. Kennedy" support for such outcome based reasoning. Roberts' allusion to the actual words of the statute in question just cannot be reasonably understood as "radical" unless one is evaluating the potential outcome politically rather than legally. If my inference overreached in your case, I apologize.

2. I do think conservative judges are affected by policy bias too. I just think less so, simply because they value more greatly the limited role of the judiciary. Both sides tend to list activist decisions by reference to political outcomes, but that is and should be entirely beside the point. For example, the reason "Roe" is a bad legal decision is not because abortion should be illegal, but because there is no warrant for the decision in the text of the Constitution. Same goes for "Lawrence", though that one at least had a fig leaf of an argument.

3. I wish to emphasize that my generalization above is certainly not intended as a universalization. Perhaps the most principled constitutional scholar I have ever known is "mainstream liberal" Wm Van Alstyne.

4. I continue to think that our current nominee should be confirmed. She is a mainstream liberal, not radical. I am saddened, however, that this is in part because the idea that courts should make policy rather than decide cases based on the policies enacted by the people through their representatives is today pretty much a mainstream idea among liberals. A liberal president should be able to appoint a reasonably accomplished liberal jurist. And I do find her life story compelling and relevant in that her trajectory of accomplishment is extraordinary, bested perhaps only by Justice Thomas. I only wish she had not bought into mainstream liberal thinking. I hope that GOP has the good sense to support her confirmation.

5. Your taste in poetry is appreciated.


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## PedanticTurkey (Jan 26, 2008)

Stringfellow said:


> Nothing is Scalia's fault, not even his own crappy opinions!
> 
> Compare Raich to Lopez and one quickly sees just how "active" the conservative justices are. They like guns and don't like pot. That's how they hold regardless of legal philosophy.


I see you forgot the last time I corrected you about which way the other conservatives voted on _Raich_.


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## Stringfellow (Jun 19, 2008)

Mike Petrik said:


> I am he whom you google. A few thoughts:
> 
> 1. Your opening accusation is fair (assuming I understand it), but my "bias" is not groundless. As a general matter my liberal friends and colleagues, including those in academia, are simply much more receptive to the proposition that courts should "use law" to make social policy. Some like Chemerinsky take that proposition to its logical conclusion. Others are more pragamatic and simply adhere to the notion that a more flexible understanding of language can fairly and legitimately allow them to inject their policy biases. The real reason that liberals so rarely endorse principles of construction such as "plain meaning" or "original intent" is not so much that they understand these principles as yielding noxious results -- sometimes they do and sometimes they don't. The real reason is that they are uncomfortable with the idea of neutral principles of construction since they make it more difficult to do their work -- which is to make policy from the bench. And as a specific matter, I inferred from your reference to "Riley v. Kennedy" support for such outcome based reasoning. Roberts' allusion to the actual words of the statute in question just cannot be reasonably understood as "radical" unless one is evaluating the potential outcome politically rather than legally. If my inference overreached in your case, I apologize.


Chimerinsky does the national BarBri Con Law lecture. 1,000's of us will be reciting his Con Law philosophy the last Wednesday in July. I don't know anything about his judicial philosophy, but I think he is crazy.


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## Stringfellow (Jun 19, 2008)

PedanticTurkey said:


> I see you forgot the last time I corrected you about which way the other conservatives voted on _Raich_.


And yet it is still impossible to reconcile the two. Guns in school zones = no effect on interstate commerce. 3 pot plants in a back yard = obvious effect on interstate commerce. Maybe Scalia isn't that strict of a constructionist. Maybe he just likes guns and does not like pot. Damn bench legislator!!! If only he were a Hispanic woman.


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## PedanticTurkey (Jan 26, 2008)

Stringfellow said:


> And yet it is still impossible to reconcile the two. Guns in school zones = no effect on interstate commerce. 3 pot plants in a back yard = obvious effect on interstate commerce. Maybe Scalia isn't that strict of a constructionist. Maybe he just likes guns and does not like pot. Damn bench legislator!!! If only he were a Hispanic woman.


Can't say I'm surprised that you don't appear to understand his opinion. Did you even read it? He's going back to Marshall, who said that Congress can do whatever it wants, as long as it really is trying is to regulate interstate commerce.

I see how legalizing pot in some states can undermine the regulation of pot in interstate commerce [I don't agree that this is the proper rule, but I can see how it at least makes sense], but I want to know how banning guns in schools is supposed to affect interstate commerce.


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## Mike Petrik (Jul 5, 2005)

PedanticTurkey said:


> Can't say I'm surprised that you don't appear to understand his opinion. Did you even read it? He's going back to Marshall, who said that Congress can do whatever it wants, as long as it really is trying is to regulate interstate commerce.
> 
> I see how legalizing pot in some states can undermine the regulation of pot in interstate commerce [I don't agree that this is the proper rule, but I can see how it at least makes sense], but I want to know how banning guns in schools is supposed to affect interstate commerce.


If I recall correctly (and I may not), isn't the distinction grounded in Congress's own articulation of the purposes of the two measures in question? In the marijuana statute, Congress articulated specific commerce clause purposes, whereas in the gun statute they failed to give so much as a hat tip to the commerce clause. If I'm right (and I may not be), the two are reconcilable in that Scalia generally defers to Congressional power to regulate commerce as long it is plain that that is what the statute purports to try to do. Absent any expressed nexus with commerce, a measure can easily fail as an impermissible police power. Honestly, I'm going by vague memory here -- I may just be wrong.


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## Mike Petrik (Jul 5, 2005)

Stringfellow said:


> Chimerinsky does the national BarBri Con Law lecture. 1,000's of us will be reciting his Con Law philosophy the last Wednesday in July. I don't know anything about his judicial philosophy, but I think he is crazy.


Chemerinsky is not crazy, even if his judicial philosophy is. He is quite bright and also quite amiable. He's just dangerously wrong.

His weirdly unprincipled view of the constitution notwithstanding, make no mistake, He is a gifted advocate. Not sure whether he's well-suited for a BarBri Con Law lecture. I would imagine he might have some very idiosyncratic views on black letter law.


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## PedanticTurkey (Jan 26, 2008)

Mike Petrik said:


> If I recall correctly (and I may not), isn't the distinction grounded in Congress's own articulation of the purposes of the two measures in question? In the marijuana statute, Congress articulated specific commerce clause purposes, whereas in the gun statute they failed to give so much as a hat tip to the commerce clause. If I'm right (and I may not be), the two are reconcilable in that Scalia generally defers to Congressional power to regulate commerce as long it is plain that that is what the statute purports to try to do. Absent any expressed nexus with commerce, a measure can easily fail as an impermissible police power. Honestly, I'm going by vague memory here -- I may just be wrong.


IIRC Scalia is no fan of "legislative intent," for good reason, but I like to hope he wouldn't give deference to a sham purpose statement and allow it to defeat the (very small) limits on the commerce power. Think of it as sort of a "rational basis" test where the interest has to be regulating interstate commerce.


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## PedanticTurkey (Jan 26, 2008)

Here's what Scalia said:



> Today's principal dissent objects that, by permitting Congress to regulate activities necessary to effective interstate regulation, the Court reduces _Lopez _and _Morrison_ to "little more than a drafting guide." _Post_, at 5 (opinion of O'Connor, J.). I think that criticism unjustified. Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As _Lopez _itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could &#8230; undercut" its regulation of interstate commerce. See _Lopez_, _supra_, at 561;_ ante_, at 15, 21, 22. This is not a power that threatens to obliterate the line between "what is truly national and what is truly local." _Lopez_, _supra_, at 567-568.
> 
> _Lopez _and _Morrison_ affirm that Congress may not regulate certain "purely local" activity within the States based solely on the attenuated effect that such activity may have in the interstate market. But those decisions do not declare noneconomic intrastate activities to be categorically beyond the reach of the Federal Government. Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation; _Lopez _expressly disclaimed that it was such a case, 514 U.S., at 561, and _Morrison_ did not even discuss the possibility that it was. (The Court of Appeals in _Morrison_ made clear that it was not. See _Brzonkala _v. _Virginia Polytechnic Inst._, 169 F.3d 820, 834-835 (CA4 1999) (en banc).) To dismiss this distinction as "superficial and formalistic," see _post_, at 6 (O'Connor, J., dissenting), is to misunderstand the nature of the Necessary and Proper Clause, which empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation. See _McCulloch _v. _Maryland_, 4 Wheat. 316, 421-422 (1819).
> 
> And there are other restraints upon the Necessary and Proper Clause authority. As Chief Justice Marshall wrote in _McCulloch _v. _Maryland_, even when the end is constitutional and legitimate, the means must be "appropriate" and "plainly adapted" to that end. _Id._, at 421. Moreover, they may not be otherwise "prohibited" and must be "consistent with the letter and spirit of the constitution." _Ibid._ These phrases are not merely hortatory. For example, cases such as _Printz _v. _United States_, 521 U.S. 898 (1997), and _New York _v. _United States_, 505 U.S. 144 (1992), affirm that a law is not " '_proper _for carrying into Execution the Commerce Clause' " "[w]hen [it] violates [a constitutional] principle of state sovereignty." _Printz_, _supra_, at 923-924; see also _New York_, _supra_, at 166.


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## Quay (Mar 29, 2008)

Mike Petrik said:


> I am he whom you google.


I don't google much. Your name was mentioned by a colleague of mine. I asked for details. Small world, I happily thought.

But surely you know, from the marks on a paper from a professor from college days, that assertion does not equal proof. 



> A few thoughts:
> 
> 1. Your opening accusation is fair (assuming I understand it), but my "bias" is not groundless. As a general matter my liberal friends and colleagues, including those in academia, are simply much more receptive to the proposition that courts should "use law" to make social policy. Some like Chemerinsky take that proposition to its logical conclusion. Others are more pragamatic and simply adhere to the notion that a more flexible understanding of language can fairly and legitimately allow them to inject their policy biases. The real reason that liberals so rarely endorse principles of construction such as "plain meaning" or "original intent" is not so much that they understand these principles as yielding noxious results -- sometimes they do and sometimes they don't. The real reason is that they are uncomfortable with the idea of neutral principles of construction since they make it more difficult to do their work -- which is to make policy from the bench. And as a specific matter, I inferred from your reference to "Riley v. Kennedy" support for such outcome based reasoning. Roberts' allusion to the actual words of the statute in question just cannot be reasonably understood as "radical" unless one is evaluating the potential outcome politically rather than legally. If my inference overreached in your case, I apologize.


Peitho walks with you and you are gracious as well. Despite your obvious errors in political thought *wink*, I find myself appreciating your reasoning and writing. I think your thoughtful consideration of things balances my wild roamings and makes this tiny corner of the world a better place.

No need for apologies, though, although the intent if not the act are much appreciated. Your inferences found what they could as I am prevented from fully disclosing my own beliefs and am thus limited in what I can say.



> 2. I do think conservative judges are affected by policy bias too. I just think less so, simply because they value more greatly the limited role of the judiciary. Both sides tend to list activist decisions by reference to political outcomes, but that is and should be entirely beside the point. For example, the reason "Roe" is a bad legal decision is not because abortion should be illegal, but because there is no warrant for the decision in the text of the Constitution. Same goes for "Lawrence", though that one at least had a fig leaf of an argument.


I find this quite interesting, as it points to an aspect human nature being distributed in unequal ways among people with different political beliefs. It is also interesting that even though one might value a very, very limited role of the judiciary that one might still attempt to "correct" past expansions of that role, if only to further limit the role of the judiciary! I now appreciate in a new way the idea of a deeply conservative "judicial activist" not attempting to expand things but taking (radical?) action to return them to what is seen as their proper sphere. I am thankful you've enlarged my perspective on this.



> 3. I wish to emphasize that my generalization above is certainly not intended as a universalization. Perhaps the most principled constitutional scholar I have ever known is "mainstream liberal" Wm Van Alstyne.


I am a great admirer of Van Alstyne's erudition and scholarship. I have always appreciated his rigorous defense of the entire Bill of Rights where others have defended all of it except that "pesky" 2nd Amendment. :icon_smile:



> 4. I continue to think that our current nominee should be confirmed. She is a mainstream liberal, not radical. I am saddened, however, that this is in part because the idea that courts should make policy rather than decide cases based on the policies enacted by the people through their representatives is today pretty much a mainstream idea among liberals. A liberal president should be able to appoint a reasonably accomplished liberal jurist. And I do find her life story compelling and relevant in that her trajectory of accomplishment is extraordinary, bested perhaps only by Justice Thomas. I only wish she had not bought into mainstream liberal thinking. I hope that GOP has the good sense to support her confirmation.


Ye gods, we agree on something! (Note to the watchers here, the earth didn't shake or the heavens fall. This is the proper way of things in the 21st century, where people of good conscience can vigorously and sometimes heatedly disagree on issues vital and yet maintain a civil discourse with invitations, no less, to be amiable hosts and furnish each other with adult beverages.)



> 5. Your taste in poetry is appreciated.


I am glad you seem to be a Housman fan. I often haunt bookstores, both new and antiquarian, and if I come across a suitable volume of his work I shall happily send it along to you.


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## Quay (Mar 29, 2008)

Mike Petrik said:


> Chemerinsky is not crazy, even if his judicial philosophy is. He is quite bright and also quite amiable. He's just dangerously wrong....


I got a hearty laugh when I read this. Very William F. Buckley, Jr., of you. :icon_smile:


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## Lord Foppington (Feb 1, 2005)

Mike Petrik said:


> The real reason that liberals so rarely endorse principles of construction such as "plain meaning" or "original intent" is not so much that they understand these principles as yielding noxious results -- sometimes they do and sometimes they don't. The real reason is that they are uncomfortable with the idea of neutral principles of construction since they make it more difficult to do their work -- which is to make policy from the bench.


I'm not a legal theorist or a lawyer. But here's a question. Could there be a third candidate for the "real reason" some legal thinkers don't endorse "plain meaning" and "original intent"?

Namely, do not some thinkers find these ideas themselves to be questionable? Of questionable meaning and questionable utility, that is. I ask as a layman, though one with a healthy sense of the massive epistemological problems that swirl around notions of intention and meaning.


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## norton (Dec 18, 2008)

Stringfellow said:


> Nothing is Scalia's fault, not even his own crappy opinions!
> 
> Compare Raich to Lopez and one quickly sees just how "active" the conservative justices are. They like guns and don't like pot. That's how they hold regardless of legal philosophy.


I found one example of a conservative judge that _may_ have decided a case based on the results he wished to achieve and you generalize it to cover all conservative judges without providing further examples.

The point is that its bad policy regardless of the political leaning of the individual judge and a judge's propensity to create law from the bench is something that should be examined and taken into account during the confirmation process.


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## mrkleen (Sep 21, 2007)

As soon a Al Franken is certified, this entire discussion will be rendered mute. 

She will be confirmed before the end of the session in August.


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## radix023 (May 3, 2007)

I don't think the Democrats in the Senate are a bloc yet. Sotomayor is a Catholic and the abortion lobby is concerned she might be a real one. The potential for Democrat support to splinter along the lines of its identity politics constituents remains. Triangulation only gets you so far.


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## Stringfellow (Jun 19, 2008)

Mike Petrik said:


> If I recall correctly (and I may not), isn't the distinction grounded in Congress's own articulation of the purposes of the two measures in question? In the marijuana statute, Congress articulated specific commerce clause purposes, whereas in the gun statute they failed to give so much as a hat tip to the commerce clause. If I'm right (and I may not be), the two are reconcilable in that Scalia generally defers to Congressional power to regulate commerce as long it is plain that that is what the statute purports to try to do. Absent any expressed nexus with commerce, a measure can easily fail as an impermissible police power. Honestly, I'm going by vague memory here -- I may just be wrong.


You are wrong. In the gun law, Congress' reason for using the Commerce Clause to regulate guns in school zones was that guns in school disrupt schools and schools spend a lot of money and a well educated student body is required for an efficient workforce (this is a paraphrase of course). How that doesn't reach interstate commerce (we can't agree that schools spend a lot of money and that students become THE workforce?) when 3 pot plants does is just crazy.

Scalia is a sellout. His supporters won't admit it but he is. He holds via the ends he prefers rather than via the means he so loudly touts.


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## Mike Petrik (Jul 5, 2005)

Lord Foppington said:


> I'm not a legal theorist or a lawyer. But here's a question. Could there be a third candidate for the "real reason" some legal thinkers don't endorse "plain meaning" and "original intent"?
> 
> Namely, do not some thinkers find these ideas themselves to be questionable? Of questionable meaning and questionable utility, that is. I ask as a layman, though one with a healthy sense of the massive epistemological problems that swirl around notions of intention and meaning.


Sure. All aspects of discerning reality are at least somewhat elusive, but appellate judges must nonetheless make real decisions involving real words irrespective of Chomsky-esque concerns. The limits of rules of construction are planted in the same ground as are all epistemological limits, which is why there will always be hard cases and competing considerations in construction. But the tools used by jurists to resolve these challenges should not be grounded in their policy preferences.


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## Mike Petrik (Jul 5, 2005)

Stringfellow said:


> You are wrong. In the gun law, Congress' reason for using the Commerce Clause to regulate guns in school zones was that guns in school disrupt schools and schools spend a lot of money and a well educated student body is required for an efficient workforce (this is a paraphrase of course). How that doesn't reach interstate commerce (we can't agree that schools spend a lot of money and that students become THE workforce?) when 3 pot plants does is just crazy.
> 
> Scalia is a sellout. His supporters won't admit it but he is. He holds via the ends he prefers rather than via the means he so loudly touts.


I must have been thinking of a different gun case. In any event I agree that it is not easy to distinguish the two cases. The best explanation I can think of relates to (i) the fact that the gun act prohibited mere possession without any reference to an act of commerce whereas the marijuana case prohibited the "manufacture, importation, possession, use and distribution" of certain drugs and (ii) the petitioner in the marijuana case never argued that Congress was without power to enact such a prohibition -- only that it must acknowledge a medical exception.


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## norton (Dec 18, 2008)

Here's a very nice opinion piece in the wall street journal on the Sotomyor nomination. I hope you can get to it without a subscription.

https://online.wsj.com/article/SB124355478303064587.html


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## Lord Foppington (Feb 1, 2005)

Mike Petrik said:


> But the tools used by jurists to resolve these challenges should not be grounded in their policy preferences.


This doesn't really need to be continued, and again I confess ignorance about legal theory.

But isn't it true that most liberal thinkers would not simply declare "my decisions are grounded in my policy preferences"? True, you cited that fellow up thread who did say some such thing, and implied (I think) that this is what most liberals "really" think but won't cop to.

It's hard for me to see that as anything other than begging the question. Isn't the whole point of all the theory of the "living constitution" and so forth, which liberals commonly espouse, to develop a way of looking at law that neither exclusively relies on fraught, uncertain notions such as "original intent" and "plain meaning" nor reduces law to merely a matter of interested manipulation ("policy preferences")?

I don't know the multitude of ways all that has been hammered out in the literature. But I assume it would involve developing an enriched sense of intention and meaning, that includes their relation to context, history, extension (or not) to unforeseen circumstances, etc. Anyway, if I were a liberal legal theorist, that's the direction I'd go.

Again, I frame all these thoughts as questions because I really don't know--I could be getting even the basic ideas wrong. But (taking them in their ordinary senses) if "original intent" and "plain meaning" seem to you inadequate as grounds of your judgments, you've got to figure out some other basis for them.


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## Acct2000 (Sep 24, 2005)

Quay said:


> Of course not. Yet, how does anyone make a decision that is not in somewhat based in who they are, which includes their social and political beliefs? Chief Justice Roberts famously used the word "sordid" in a decision to describe his view of a situation and what is "sordid" if not a word heavily freighted with social, moral and thus personal beliefs?
> 
> You sound like, in terms of modern legal theories, a strict Originalist. Are you in favor of any new things that have come along since the original Constitution was written? The Bill of Rights? Women voting? Emancipated slaves?
> 
> Preserving the original meaning of the times of the late 18th century surely means we must reverse all this "living" that has gone on since then, at least according to Originalist thinking. Perhaps this is what Roberts is trying to do?


The bill of rights, women voting and the emancipation of slaves were all changed by the approved process for amending the constitution.


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## Mike Petrik (Jul 5, 2005)

Lord Foppington said:


> This doesn't really need to be continued, and again I confess ignorance about legal theory.
> 
> But isn't it true that most liberal thinkers would not simply declare "my decisions are grounded in my policy preferences"? True, you cited that fellow up thread who did say some such thing, and implied (I think) that this is what most liberals "really" think but won't cop to.
> 
> ...


I don't think you are getting the basic ideas wrong. My opinions are just that -- opinions, even if they are based on thousands of conversations over the years with countless liberal legal scholars and jurists. If you are genuinely interested in the thinking behind such concepts as "textualism" versus "originalism" versus "living constitution," I would suggest you read two classics: Conservative Robert Bork's "The Tempting of America" and Liberal John Hart Ely's "Democracy and Distrust." Both are deep and principled works.

As far as whether liberals admit to judging cases based on policy preferences, certainly not all do. In my experience, this type of candor is far more likely in academic and professional circles than among judges. A man cannot be expected to express certain things in office that he would over drinks among friends. You are free, of course, to speculate that liberals are no more likely than conservatives to favor the use of courts for making policy (on the face of it such speculation is not implausible), but my experience does not allow me to consider that a reasonable possibility.


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## Mike Petrik (Jul 5, 2005)

Lord Foppington said:


> This doesn't really need to be continued, and again I confess ignorance about legal theory.
> 
> But isn't it true that most liberal thinkers would not simply declare "my decisions are grounded in my policy preferences"? True, you cited that fellow up thread who did say some such thing, and implied (I think) that this is what most liberals "really" think but won't cop to.
> 
> ...


Your implied hypothesis (at least I think that it is implied) that conservatives are equally policy-driven as liberals finds support in the WSJ piece cited above -- https://online.wsj.com/article/SB124355478303064587.html, which states, "[m]oreover, a number of Judge Sotomayor's specific legal opinions -- whether on racial preferences, or gun restrictions -- put her to the left of most Americans." This of course is irrelevant nonsense. The merit of a judge's opinion is measured by its legal reasoning, not by where it lands on some political spectrum. I found the WSJ piece overall pretty disappointing.


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## Lord Foppington (Feb 1, 2005)

Mike Petrik said:


> Your implied hypothesis (at least I think that it is implied) that conservatives are equally policy-driven as liberals...


Well, I was trying hard not to imply that. I was trying to imagine a way in which a judge could think "original intent" and "plain meaning" were inadequate bases for judgment and still seek some other principled (not merely policy-driven) basis and motive for legal reasoning. That is, I was trying see the statement "either you're an originalist or you believe that only policy motivates judgment" as presenting a false alternative. If I were a liberal jurist, at least, I'd argue for a third option: judgments must be principled without depending on dubious notions like "original intent" etc.

Thought about this way, both liberals and conservatives could make principled decisions that rise above the motive merely to promote pet policies. (And of course, both liberals and conservatives could make interested decisions too.) The liberal argument against the conservative would not be "you're really just as policy-driven as I am" but rather "your judgments are faulty because they rest on a dubious basis, unlike mine." The conservative argument against the liberal would be "your elaborate models of meaning and intention just lead to relativism" etc. etc.


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## Mike Petrik (Jul 5, 2005)

Lord Foppington said:


> Well, I was trying hard not to imply that. I was trying to imagine a way in which a judge could think "original intent" and "plain meaning" were inadequate bases for judgment and still seek some other principled (not merely policy-driven) basis and motive for legal reasoning. That is, I was trying see the statement "either you're an originalist or you believe that only policy motivates judgment" as presenting a false alternative. If I were a liberal jurist, at least, I'd argue for a third option: judgments must be principled without depending on dubious notions like "original intent" etc.
> 
> Thought about this way, both liberals and conservatives could make principled decisions that rise above the motive merely to promote pet policies. (And of course, both liberals and conservatives could make interested decisions too.) The liberal argument against the conservative would not be "you're really just as policy-driven as I am" but rather "your judgments are faulty because they rest on a dubious basis, unlike mine." The conservative argument against the liberal would be "your elaborate models of meaning and intention just lead to relativism" etc. etc.


Fair enough. There are indeed many alternative and complementary principles of construction. That said, it is exceedingly difficult to see how a judge can avoid giving his policy preferences weight if he believes he has the warrant to depart from the touchstones of text and intent. Nonetheless, I care far less about how a judge ranks or uses principles of construction, than I do with his consistency in applying such principles at the expense of policy preferences. I find some of the current nominee's statements a bit discomforting on that score, but her record does not seem to be especially disturbing (the NY firemen's case perhaps a notable exception). Accordingly, I think much of the criticism is overwrought and inappropriate. That said, I do distinguish between criticism grounded in a concern over her understanding of the judiciary's role (appropriate) and criticism grounded in a concern over her decisions that depart from public opinion, conservative opinion, or whatever (not appropriate). Radicalism in a jurist is not tested by reference to how opinions square with public opinion, but rather by how they square with the law being applied. I suspect we agree on that.


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