SCOTUS appointment thread

[Ser Scot A Ellison]

Sologdin,

Just making sure. From everything I've read and heard Judge Sotomayor should be a good Justice.

[shootme]

Excellent choice. She is spot with her interpretation of abortion rights, race politics, and access to firearms.

[Doran Doran]

perhaps they can gleam the vote of all of the fiscal conservatives who are ready to jump off this sinking ship.

I wouldn't bet on it. The vast majority of the disgusted fiscal conservatives I've met recently - and I work in an environment where they are more numerous than single welfare moms in Harlem - who thought to punish the Reps for irresponsible profligate spending by going Obamacon last years are now doing mea maxima culpa routines that fall in a wide span between silent disbelief and screaming horror as Obama reminds them what real deficit spending and unchecked government expansion looks like. I doubt they'll going to be fooled twice, at least not until we've seen at least the full turn of an economic cycle.

Anyway, and more to the point: is there any credible source out there that can authoritatively confirm or deny that she was a member of The Race?

[IheartTesla]

At any rate, Justice Scalia says he won't even consider hiring law clerks that aren't from Yale or Harvard. But for most people, I think any of the top 10 law schools would work. The ideal candidate would have clerked for the Court or one of the Court of Appeals right out of law school, and generally, those opportunities are only available to you from a top 10 law school. The law is very hierarchical - you're just not going to get the experience required unless you went to one of those schools, because those doors will already be closed to you.

I didnt realize Scalia, in addition to his other annoying qualities, was also a pedigree queen.

Also, Le Raza doesnt mean the Race, so the question by the poster above me is moot.

[sologdin]

should be a good Justice.

scot--

perhaps this deserves a separate thread, but i've been getting curious about what, if anything, makes a bad US SC justice, and who, if anyone, actually was a bad justice.

there's plenty of decisions with which i disagree, but my disagreement hardly makes the judges who wrote them bad judges. i also think some sitting justices are simply assholes, or troglodytes, or dead-enders, or whatever, but they are perfectly good judges.

[KazigluBey]

I believe that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a negro who hasn't lived that life. Negros do not have the deep, complex experiences in life that white people do, and thus are unable to attain our level of profound understanding.

[sologdin]

who hasn't lived that life

this phrase is what makes quotation significantly less damaging than some folks think it is, even out of context.

also: change "i believe that" to "i would hope that." and then strike the interpolated second sentence.

[KazigluBey]

The first sentence is racist, the second is only expanding those racist views. I find anyone who prejudges someone to that extent has no business being judge, much less a supreme court justice.

[Ran]

Do you feel the same way about Clarence Thomas? He's expressed rather similar sentiments to Sotomayor with regards to the importance of his being black and to the experiences that come from it in developing his perspective as a judge. :P

[KazigluBey]

There's no denying that her gender and ethnic background gives her a unique point of view for the bench. However, her claiming that her point of view is superior to that of everyone else because she's a latina is blatantly racist and bigoted.

[Ran]

That's not what she actually says, though. You need to read the whole speech, I think, to have a better understanding of the context.

[TrackerNeil]

There's no denying that her gender and ethnic background gives her a unique point of view for the bench. However, her claiming that her point of view is superior to that of everyone else because she's a latina is blatantly racist and bigoted.

Personally, I'd like to read the entirety of Sotomayor's statement before I decide she is a racist and bigot and all-around horrible person. And by "entirety" I mean more than the sentence before and the one that followed. I want to know where she was speaking, on what topic, and what her overall point was. Otherwise, this sounds like sound-byte mining.

[Guest Raidne]

Half the sitting federal judges thought the 2nd amendment explicitly removed any individually held right to bear arms? Given the history surrounding the passage of the bill of rights I have a very difficult time believing the second amendment was ratified in order to take away an individual right.

To be clear, there is absolutely nothing about Judge Sotomayor's thesis that should disqualify her from the Supreme Court. I simply think she was wrong.

Scot, I think you know I happen to agree with you about the 2nd Amendment, but I think you also know that it's hardly controversial to think that the first clause states a condition that limits the scope of the clauses that follow. And, yeah, I think opinions on that point have always been evenly split in the legal community.

In fact, even I don't think that's what the framers' intended it to mean, I'm just fine with the pro-individual rights interpretation because it's what the majority of the populace thinks it means now, and that's just how I roll.

should be a good Justice.

scot--

perhaps this deserves a separate thread, but i've been getting curious about what, if anything, makes a bad US SC justice, and who, if anyone, actually was a bad justice.

there's plenty of decisions with which i disagree, but my disagreement hardly makes the judges who wrote them bad judges. i also think some sitting justices are simply assholes, or troglodytes, or dead-enders, or whatever, but they are perfectly good judges.

Solo, I know you're not addressing me, but I think a willingness to betray one's fidelity to the law to get to the political result desired makes a person a bad judge, for instance, the way that a decision in favor of the fire-fighters in Ricci v. Stefano would be underhanded way to get rid of the 1992 Amendment to Title VII allowing for disparate impact lawsuits, and would lay the groundwork for getting rid of Title VII by intentionally gunking it up with bad, irrational law. If you're a Judge, and you don't think Title VII is Constitutional, than take that case and rule on it.

For that reason, I think Scalia is a bad Justice. Of course, he hasn't taken that position on this case yet, but I'll bet anyone anything they want that he will. And there are plenty of other examples. You must be familiar with the experience - you read a Scalia opinion and at first think that, if nothing else, it logically follows, but then you read the other opinions and realize he's cherry-picked the relevant facts and chose to not address inconvenient points of law.

ETA: You know what else just kills me? I'm reading an article right now where conservatives are bashing Sotomeyer for not reaching the Constitutional issues in the Ricci v. Stefano case. I'm not even entirely sure what they mean by that, but I think they mean that she should have addressed whether or not Title VII itself is unconstitutional under the Equal Rights Amendment. It's not really clear that this issue is raised by these facts. And the truly funny part is that the dictionary definition of a conservative Justice is a person who doesn't address Constitutional issues unless they are explicitly raised and there's no other way to rule on the case. To do otherwise, is to be the dictionary definition of a judicial activist. So the conservatives are railing at Sotomeyer for not being an activist judge.

It's a bizarre world.

[Ran]

Here is the full text of Sotomayor's speech. It's "nuanced" in modern parlance (aka has more to it than can be truly encompassed by a fifteen-second sound bite from some random pundit).

[sologdin]

a willingness to betray one's fidelity to the law to get to the political result desired makes a person a bad judge,

raidne--

i see what you're saying, and it is of course completely reasonable.

i suspect nevertheless that we have different theoretical orientations regarding the law: you may adopt some variant of legal formalism, wheras i am a CLS-type anti-formalist, and thereby believe that all adjudications enact the policy preferences of the adjudicator.

this means that i do not take seriously people's objections such as "she's an activist" or "she insufficiently defends states' rights" or "she should have decided the statutory issue instead of the constitutional one" and so on--because all of that simply encodes an objection to the result(these objectors will later be arguing the opposite cases when they wish to defend the policy result of a decision--see the flipped world of bush v. gore, or the bizarro-world example you note, which, to me, is not bizarre, but par for the course.)

this means that i am forced to demur to the pertinent charges leveled against sotomayor because they go without saying for all judges--and therefore the rightwing will need something more in order to disqualify her candidacy.

[Guest Raidne]

a willingness to betray one's fidelity to the law to get to the political result desired makes a person a bad judge,

raidne--

i see what you're saying, and it is of course completely reasonable.

i suspect nevertheless that we have different theoretical orientations regarding the law: you may adopt some variant of legal formalism, wheras i am a CLS-type anti-formalist, and thereby believe that all adjudications enact the policy preferences of the adjudicator.

this means that i do not take seriously people's objections such as "she's an activist" or "she insufficiently defends states' rights" or "she should have decided the statutory issue instead of the constitutional one" and so on--because all of that simply encodes an objection to the result(these objectors will later be arguing the opposite cases when they wish to defend the policy result of a decision--see the flipped world of bush v. gore, or the bizarro-world example you note, which, to me, is not bizarre, but par for the course.)

this means that i am forced to demur to the pertinent charges leveled against sotomayor because they go without saying for all judges--and therefore the rightwing will need something more in order to disqualify her candidacy.

Solo, I think I've given you the wrong impression. A person doesn't really have to choose between being holding a ridiculously untenable position that pretends that The Law is more important than human concerns and an utterly relativistic system of law that is so individualistic that to call it "law" becomes a laughable proposition, i.e. formalism vs. CLS.

By fidelity to the law, I mean Lon Fuller's positivist argument about looking for ways the notion of having laws itself creates some of its own restraints and rules. And it does - otherwise Fuller and Hart wouldn't have had that whole debate about "hard cases" and "easy cases" - because if no judges gave thought to the rules and their obligations to the law, there would be no difference between the two.

[sologdin]

I've given you the wrong impression

raidne--

unlikely that you gave it; i probably crafted it out of whole cloth.

that said, i'm still not sure how "some of its own restraints and rules" compels the conclusion that apolitical adjudication is possible.

kaz--

i missed your response above earlier.

allow me to elaborate on my prior, which stated:

change "i believe that" to "i would hope that."

this is important: your interpolated "i believe that" is an indicative assertion, whereas her original "i would hope that" is twice subjunctive--

a) it is conditional, insofar as she is considering a hypothetical;

b) within the world of that hypothetical, she is expressing her hope that a latina woman would be better able to consider certain types of cases, as detailed in the contextual materials, than judges who "did not live that life," i.e., the life of the party with whom our hypothetical wise latina shares some material experiences.

a case on point could look like this:

minimum wage worker, latina, maybe ill-educated, young, under a certain amount of pressure, brings a title vii claim, on the basis of hostile workplace environment, from which she was "constructively discharged" (i.e., resigned after being treated horribly). she wants backpay, but also damages, perhaps including punitives. she is therefore entitled to a jury trial. defendant employer files a motion for summary judgment, alleging that she quit, as she admits in her pleadings, and her quitting was not objectively reasonable, given the facts alleged (whatever they might be). the judge must then decide what counts as reasonable here. (if it goes to the jury later, then the jury gets to make the call on reasonableness.)

sotomayor's thesis is that the judge who has been in my hypothetical plaintiff's position might understand exactly the harm inflicted, and perhaps will be able to see the reasonableness of the resignation more clearly than a judge who was born with a silver spoon up his ass, never had to work for anything , and has not experienced any discrimination at all--this silver-spooned judge might have some fairly abstract and frankly barbaric concepts of the tolerability of certain discriminatory practices--lotsa stuff, after all, does not sound so badly on paper in the absence of an elucidative memory.

this may all sound like crap to those who don't like judges, or hate title VII, or are generally misanthropic--but the notion that such silver-spooned judges simply don't get discrimination law is precisely the reason for the 1991 amendments to the civil rights act, which allowed, inter alia, damages for discrimination, and, very importantly, thereby entitled plaintiffs to a jury trial--the rationale was simply that the legislature considered diverse juries more capable of enforcing rights under title VII than a fairly homogenous bench, which prior to the amendments tried discrimination cases in the absence of juries.

we can slap sotomayor around for saying that she "would hope" that a heterogenous judiciary would handle diversified claims in discrimination suits better than a homogenized bench--but then we must also slap around the congress of the united states on identical grounds. i wish all those so inclined the best of luck in their legislative slappery.

[Commodore]

Here is the full text of Sotomayor's speech. It's "nuanced" in modern parlance (aka has more to it than can be truly encompassed by a fifteen-second sound bite from some random pundit).

She believes that the experiences of hispanics make them better qualified to be a judge, in general. Not a racist statement in the traditional genetic superiority sense (just a horribly ignorant generalization), but if a white person had said such a thing about their race, they would stand no chance of confirmation and would be branded a racist.

Belonging to a group called "The Race" whose mission is to promote the wellfare of a particular race exclusively is not that comforting either. Again, if a white person were a member of such an organization, they would stand no chance.

But the church Obama belonged to promoted a similar ethos, a Black Value System. And it didn't stop people from electing him, so I doubt Sotomayor will have any trouble getting confirmed.

When Obama talks about empathy, he means empathy (favoritism) for certain groups. And Sotomayor is on board with stacking the deck for such groups and favoring them in rulings.

Not blind justice, but "fair" justice.

[sologdin]

the experiences of hispanics make them better qualified to be a judge, in general

whence do y'all get this?

certainly not from--

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

if someone on the other side can deal with the underlined portions better than i have, then i'll--well, it's impossible. nevermind. carry on.

[TrackerNeil]

Here is the full text of Sotomayor's speech. It's "nuanced" in modern parlance (aka has more to it than can be truly encompassed by a fifteen-second sound bite from some random pundit).

Thanks Ran. For those who have not yet read this speech, the paragraph preceding the now-famous words begins thusly:

That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice.

Therefore, it's clear to me that Judge Sotomayor is speaking in terms of a judge's understanding of the experiences of female minorities. In that respect, almost certainly Sotomayor has a better background than, say David Souter. That's a far cry from the allegation that Sotomayor thinkgs that female Hispanic judges are superior in all respects at all times to white male judges.

Now, I realize that amongst conservatives taking note of context = weakness and flip-floppery, but I hope the rest of us can arrive at a more mature view of Sotomayor's words.