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SCOTUS appointment thread


Elrostar

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Harry,

Interesting. Apparently Jeff Sessions is saying that there probably won't be a filibuster. If he turns out to be right, it will be an uncommonly rational political move by the Obama-era GOP.

I don't think anyone can credibly argue Judge Sotomayer isn't qualified given her CV. Therefore, the only reason for a filibuster would be her poltical opnions. Given the GOP position on Bush's nomionees that would be the basest hypocrisy possible.

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I don't think anyone can credibly argue Judge Sotomayer isn't qualified given her CV. Therefore, the only reason for a filibuster would be her poltical opnions. Given the GOP position on Bush's nomionees that would be the basest hypocrisy possible.

I think the GOP could come up with a baser hypocrisy. The genius of the American system is that it constantly encourages innovation.

And incidentally I think that opposing Sotomayor because of her political opinions is perfectly valid; Obama of course picked her in part because of those positions, and it's still hard for me to see, now that the partisan situation has changed, why Republicans in Congress couldn't take that into account as well.

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That's where you and I disagree then. Political opinion shouldn't matter because judge's political opinions aren't supposed to factor in their decisions. They take an oath to strive for impartiality.

And perhaps in the Supreme Court of Magical Elves, political opinions don't matter. Sotomayor's political opinions _do_, and so has the political opinions of every other Supreme Court justice in American history. I don't think that even contradicts their oath to strive for impartiality either; impartiality cannot mean that a judge is required to examine his crystal ball and see what the real answer to a legal question is, because nine times out of ten there isn't a "real answer" to be found, and in that absence the judges will rely instead on their particular view of the law and how it should function in American life. This is particularly true at the level of the Supreme Court, where the easy questions have largely been weeded out.

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And perhaps in the Supreme Court of Magical Elves, political opinions don't matter.

Speaking of, has anyone else been keeping up on that? I hear that Pennyfarthing Owlsfeather is the new favorite, though you can't count Lady Wendy Sparklewing out of the running -- even though the gruagh have been clamoring for someone with a more progressive view on toadstool frolics, you know how ornery the pixies can get at the Fairyland High Council.

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Harry,

And perhaps in the Supreme Court of Magical Elves, political opinions don't matter. Sotomayor's political opinions _do_, and so has the political opinions of every other Supreme Court justice in American history. I don't think that even contradicts their oath to strive for impartiality either; impartiality cannot mean that a judge is required to examine his crystal ball and see what the real answer to a legal question is, because nine times out of ten there isn't a "real answer" to be found, and in that absence the judges will rely instead on their particular view of the law and how it should function in American life. This is particularly true at the level of the Supreme Court, where the easy questions have largely been weeded out.

Well, again, I disagree. She's competent, she's qualified. That's all that matters in my opinion. I'm not going to delve into crap that isn't relevent to her job or job performance. If you feel the need to crawl up nominee's butts have at it.

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On empathy:

U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court

U.S. SENATOR TOM COBURN (R-OK): Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

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

There's also a bit in there about Alito's reversals by SCOTUS (before he was appointed obviously).

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Well, again, I disagree. She's competent, she's qualified. That's all that matters in my opinion. I'm not going to delve into crap that isn't relevent to her job or job performance.

It's curious to see you argue that how Sotomayor is likely to rule on various issues is irrelevant to her job. Assuming that she provided the deciding vote in each case, would you think that it was irrelevant if she thought that (a) flag burning could be prohibited under the First Amendment; (b) there was a constitutional right to gay marriage; © the death penalty was unconstitutional; or (d) the President could ignore all laws related to his war-making power?

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Harry,

It's curious to see you argue that how Sotomayor is likely to rule on various issues is irrelevant to her job. Assuming that she provided the deciding vote in each case, would you think that it was irrelevant if she thought that (a) flag burning could be prohibited under the First Amendment; (b) there was a constitutional right to gay marriage; © the death penalty was unconstitutional; or (d) the President could ignore all laws related to his war-making power?

Look, is it a proper [role] for Congress, in offering advice and consent on a President's judicial nominees, to try to affect the outcome of cases before they are heard? Here I thought Judicial nominees and Judges weren't supposed to comment on cases and issues they might be asked to rule upon under the Judicial canons. As such, political opinions and possible rulings are not someing Congress should be open for Congressional inquiry.

[edited because a roll is not a "role" (thanks Paddy)]

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The host asked about a hypothetical agument between Sotomayor and Scalia. He said Sotomayor would listen carefully to Scalia, strip away the retoric and emotion from his argument and consider its merits. He said that she would have no problem going with Scalia if she thought the argument he presented, stripped of emotion and hyperbole, was correct.

Its fascinating building up a profile of Scalia from mostly second hand opinions I've read. He's a legal genius who has convoluted, but right arguments. He uses rhetoric, emotion and hyperbole. He asks students to indulge in orgies. He and Clarence Thomas are BFFs. He goes hunting with Dick Cheney. He thinks a constituion written over 200 years ago is good enough for today*

*-caricature of his actual position.

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Look, is it a proper roll for Congress, in offering advice and consent on a President's judicial nominees, to try to affect the outcome of cases before they are heard? Here I thought Judicial nominees and Judges weren't supposed to comment on cases and issues they might be asked to rule upon under the Judicial canons. As such, political opinions and possible rulings are not someing Congress should be looking at.

First we were talking about you and your opinions. Now we're talking about Congress and judicial canons. I think you're ducking the question.

And I'm not saying that Sotomayor should be asked how she'd rule on any specific pending case before the Supreme Court (although I gather that in general she wouldn't be permitted to vote on said cases). What I'm saying is that her general view of the law--how far the executive war powers, for example--are incredibly relevant to her job, and she could easily be asked about them without talking about specific cases.

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Harry,

First we were talking about you and your opinions. Now we're talking about Congress and judicial canons. I think you're ducking the question.

And I'm not saying that Sotomayor should be asked how she'd rule on any specific pending case before the Supreme Court (although I gather that in general she wouldn't be permitted to vote on said cases). What I'm saying is that her general view of the law--how far the executive war powers, for example--are incredibly relevant to her job, and she could easily be asked about them without talking about specific cases.

But that's still inquiring after how she may rule on cases and issues she may see in her roll as a Supreme Court Justice. That's not something she should comment about. I understand it's relevant in the broad sense. But Judges and Justices aren't supposed to do that. Commenting or speculating how they would rule on issues they may face, before they face them, is misconduct.

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But that's still inquiring after how she may rule on cases and issues she may see in her roll as a Supreme Court Justice. That's not something she should comment about.

That's not a violation of the federal judicial canons. Canon 3(A)(6)--the relevant provision--applies only to "the merits of a pending or impending action", not general legal issues. Richard Posner writes on political issues all the time without running afoul of this provision. Since he became a judge in 1981, he's written two dozen books on legal topics explaining his understanding of the law. Antonin Scalia gives public interviews on legal issues all the time. It doesn't make sense to me that Scalia can answer Lesley Stahl's questions about the President's war-making power, and yet somehow Sotomayor can't answer Jeff Sessions' questions on the same time.

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Harry,

That's not a violation of the federal judicial canons. Canon 3(A)(6)--the relevant provision--applies only to "the merits of a pending or impending action", not general legal issues. Richard Posner writes on political issues all the time without running afoul of this provision. Since he became a judge in 1981, he's written two dozen books on legal topics explaining his understanding of the law. Antonin Scalia gives public interviews on legal issues all the time. It doesn't make sense to me that Scalia can answer Lesley Stahl's questions about the President's war-making power, and yet somehow Sotomayor can't answer Jeff Sessions' questions on the same time.

Let me put this another way. When my wife worked for a Judge she was under strict instructions to never talk to the press about anything. She was elected President of our homeowner's association and a reporter wanted to talk to her about steping into the shoes of a man who had been there for thirty years she declined because of her Judge's rule that you never talk to the press. I think Posner and Scalia are wrong to be as public as they are about their views on the law. Judges should not be talking about their views on things to the public.

Please remember Canon 2(A):

A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE'S ACTIVITIES. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Even talking about legal beliefs and theories could run afoul of this Canon if the Judge or Justice is talking about how they view "the law." It gives the impression they've prejudge issues they may see in the future. Laura's Judge was a bit of a Nazi about the press, but, given this Canon I think he was right to be.

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