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How to Grill a Nominee
Randy Barnett has a suggestion for the senators at the Sonia Sotomayor hearings:
Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment "incorporate" the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?
Don't ask how the meaning of these clauses should be applied in particular circumstances. Just ask about the meaning itself and how it should be ascertained. Do nominees think they are bound by the original public meaning of the text? Even those who deny this still typically claim that original meaning is a "factor" or starting point. If so, what other factors do they think a justice should rely on to "interpret" the meaning of the text? Even asking whether "We the People" in the U.S. Constitution originally included blacks and slaves -- as abolitionists like Lysander Spooner and Frederick Douglass contended, or not as Chief Justice Roger Taney claimed in Dred Scott v. Sandford -- will tell us much about a nominee's approach to constitutional interpretation. Given that this is hardly a case that will come before them, on what grounds could nominees refuse to answer such questions?
|7.13.09 @ 12:13PM|#
Now judge Sotomayor you said in a speech once that you were some kind of magic Latina. Now just exactly what magic powers do you have? Do all Latinas have these magic powers or just you?
Jeff P|7.13.09 @ 12:19PM|#
I foresee the entire chamber breaking out in an improv redition of the Schoolhouse Rock preamble song...
|7.13.09 @ 12:20PM|#
Please explain why you voted to deny the Ricci plaintiffs an en banc hearing before the 2nd Circuit.
|7.13.09 @ 12:25PM|#
If Sister Bertrille does not need to buy airplane tickets because her seagull-wing-like headgear allows her to fly around Puerto Rico, is she participating in interstate commerce in air travel by avoiding paticipation in it?
|7.13.09 @ 12:28PM|#
What is your name?
What is your quest?
What is the airspeed velocity of an unladen swallow?
|7.13.09 @ 12:30PM|#
This is a nice way around the "I can't comment on any actual
cases whatsoever" response that is the cornerstone of modern
confirmation hearings. And Barnett is right that it would be just
as revealing about the Senators as the candidate.
But I think the core issue is what qualifies as a justifiable
reason to vote against the confirmation of a candidate. When a
Senator says "I voted against because we differ in our
interpretation of the second amendment" isn't that Senator saying
(in code) "I think guns rights should be more/less restricted, but
I believe the candidate thinks gun rights should be less/more
restricted"? So why not just ask the candidate the gun rights
question point blank (so to speak)? Rather than take Barnett's
route of accommodating the non-response response -- and man,
Roberts was a master at that -- why not encourage Senators to press
the issue and point out the absurdity of candidates for the Supreme
Court being afraid to offer their opinion, as if opinion were
binding precedent?
I admit that my approach is probably not any easier to adopt than
Barnett's. His requires Senators being conversant with the
Constitution. Mine requires them to have spines.
Paul|7.13.09 @ 12:30PM|#
those who deny this still typically claim that original meaning is a "factor" or starting point.
Sort of like my daughter takes the original meaning of "Don't jump
on the bed" as a starting point...
individual|7.13.09 @ 12:32PM|#
If the Constitution grants Congress the power "To coin Money, regulate the Value thereof, and of foreign Coin" then how is the Federal Reserve Act constitutional?
|7.13.09 @ 12:35PM|#
Excellent advice. As any attorney can tell you, asking someone open-ended questions and inviting them to ramble is good way to get them to either (a) discredit their own credibility or (b) incriminate themselves.
The Angry Optimist|7.13.09 @ 12:38PM|#
individual - how is it not?
john - quit it. you know that the problem is in the legislature. I
know that the RWM has made some kind of bizarre call-to-arms over
Ricci, but it's over. Let it go.
|7.13.09 @ 12:39PM|#
I would just like someone to ask her "what does it mean to be an enlightened Latina?" and just let her talk. My guess is that she would step on it in short order.
|7.13.09 @ 12:40PM|#
I hate to belabor this, but again: Sotomayor is probably the
least worst nominee one can expect from Obama, overall. It doesn't
matter what questions you ask her, or how. Scuttling her nomination
will most likely end up with a worse nominee, and then the Dems
will demonize the GOP as not being bipartisan, and the worse
nominee will get through.
I realize that Barnett was talking about all nominations, now and
in the future, but the end result is the same.
|7.13.09 @ 12:40PM|#
"john - quit it. you know that the problem is in the
legislature. I know that the RWM has made some kind of bizarre
call-to-arms over Ricci, but it's over. Let it go."
Bullshit. Read Stuart Taylor's piece on the case. She tried to bury
it and tried to deny an en banc hearing even though it was a very
novel case. It was not a question of her following precident. The
bitch had it out for the plaintiffs in that case.
|7.13.09 @ 12:42PM|#
Epi,
You are right. There are worse nominees out there. But that doesn't
mean there are not points to be scored by trashing her. She ought
to leave the confirmation process painted as a race monger. And her
appointment ought to end any ideas that Obama is interested in
being a post racial President.
Naga Sadow|7.13.09 @ 12:43PM|#
Ask her "tough questions" and upload her answers to
youtube?
*shrugs*
The Angry Optimist|7.13.09 @ 12:44PM|#
it was not in any way "novel", well, not if you realized that Title VII was going to one day yield white folks complaining under it as well. you're absolutely deranged on this topic. And given that it was a 5-4 split, you're hard-pressed to say that she was demonstrably wrong or malevolent in the process.
|7.13.09 @ 12:50PM|#
AO,
You are just not reading my posts. First, it was novel. It got
accepted by the Supreme Court. The Supreme Court doesn't give cert
to non-novel cases. Second, you should read the Taylor article. In
part is says
Cabranes, like Sotomayor a Clinton appointee of Puerto Rican
heritage -- and once a mentor to her -- was outvoted by 7-6, with
the more liberal judges (including Sotomayor) in the majority. But
by publishing a blistering June 12, 2008, dissent Cabranes brought
the case forcefully to the attention of the Supreme Court.
By that time, Torre had filed a petition for certiorari with the
court, a fairly unusual move in a case involving impecunious
clients because of the long odds against success. Those odds seemed
especially long in this case. Not only had the panel branded it as
insignificant, but the justices usually review cases to resolve
conflicts among precedents set by different appeals courts -- and a
summary order sets no precedent.
Enter Judge Cabranes. In his dissent, he accused the Sotomayor
panel of having "failed to grapple with the questions of
exceptional importance raised in this appeal," and he urged the
Supreme Court to do so. He stressed that despite the unusually long
and detailed briefs, arguments and factual record, the panel's
"perfunctory disposition" oddly contained "no reference whatsoever
to the constitutional claims at the core of this case." Cabranes
also suggested that the case might involve "an unconstitutional
racial quota or set-aside."
Some of the seven judges who voted to deny rehearing, including
Sotomayor, responded that (among other things) the panel's decision
had been dictated by past 2nd Circuit precedents. Cabranes disputed
this.
There has been much speculation about what Adam Liptak of the New
York Times described on May 26 as the Sotomayor panel's "remarkably
cursory" and "baffling" treatment of the case, which Liptak said
"bristles with interesting and important legal questions about how
the government may take account of race in employment."
Liptak later reported that "according to court personnel familiar
with some of the internal discussions of the case, the three judges
had difficulty finding consensus, with Judge Sack the most
reluctant to join a decision affirming the district court. Judge
Pooler, as the presiding judge, took the leading role in fashioning
the compromise. The use of a summary order, which ordinarily cannot
be cited as precedent, was part of that compromise."
But if that's what happened, it might be difficult to square the
panel's action with the 2nd Circuit's Local Rule 32.1(a). That rule
provides that panels may rule "by summary order instead of by
opinion" only "in those cases in which decision is unanimous and
each judge of the panel believes that no jurisprudential purpose
would be served by an opinion (i.e., a ruling having precedential
effect)."
http://ninthjustice.nationaljournal.com/2009/07/how-ricci-almost.php
I am not derranged at all. The facts are pretty clear. Why are you
such a pussy whipped liberal that you cannot admit to yourself that
gee, maybe it is possible that nonwhite people don't like white
people and act accordingly?
individual|7.13.09 @ 12:51PM|#
TAO, well rather than the government coining money, you have the Fed coining money. It's not right, darnit.
|7.13.09 @ 12:52PM|#
AO,
Sotoymayer rather than writing a full opinion that would have
precidence and risk getting cert she wrote a summary order hoping
the case would go away.
|7.13.09 @ 12:54PM|#
it was not in any way "novel", well, not if you realized
that Title VII was going to one day yield white folks complaining
under it as well. you're absolutely deranged on this topic. And
given that it was a 5-4 split, you're hard-pressed to say that she
was demonstrably wrong or malevolent in the process.
Not to mention the fact that the majority on the SCOTUS were
actually kind of legislating from the bench (ACTIVIST JUDGES!!!) by
basically saying that you have to prove that you would lose a
lawsuit rather than just show that you can be sued in order to
justify throwing the results out.
I really don't think this is the case to try and use against
her.
The Angry Optimist|7.13.09 @ 12:57PM|#
individual - so you want a government-controlled Federal
Reserve? I mean, what's the dif?
John -First of all, yes, Ricci is "novel" in terms of the
fact that there hasn't been a case like it, but it isn't novel for
those of us who understand what the "logical conclusion" of laws
are. At some point, a disparate-impact claim was going to be filed
by white folks and finally accepted by the Top Judiciary. I mean,
ho-fucking-hum.
Why are you such a pussy whipped liberal that you cannot admit to yourself that gee, maybe it is possible that nonwhite people don't like white people and act accordingly?
*sigh*. Did I say anything like this? No, I did not. I already
read Taylor's piece, and I still don't really see anything
in there supporting your packaged representation of her decision in
Ricci as "Latina racist bitch had it out for the white
man". It's just not there...what is interesting to me, though, is
how desperate you are to be a victim. After years of Victomology
Pimping 101 from the Left, it seems it has finally infiltrated the
conservative Right.
|7.13.09 @ 1:04PM|#
How is it not there AO? Why did she write a summary order rather
than a full opinion. The case clearly deserved a full opinion. Just
reverse the races. Have a white guy do that with black plaintiffs,
they would be crucified to it.
Further, i am not a vicitm. I wasn't a plaintiff in that case. But,
I do know that if I did any of the stupid shit that Sotomayor has
done, I wouldn't have a job letalone an appointment to the Supreme
Court. And probably not without reason. Either we have standards of
behavior or we don't. People like you seem to have this idea that
to hold someone to a standard of behavior regardless of race is
wrong and being a victim. No, it is not. She treated those
plaintiffs very unfairly and made a lousy decision. She ought to
have to explain her failure to write an opinion. Furhter, she ought
to have to explain why she disagrees with the majority of the
Supreme Court. The four that voted against the Plaintiffs in that
case were dead wrong.
It is not being a victim to point out where people were wrong. I
can't explain her behavior in that case by anything other than
malace. Is there any example in her career of her being so
dismissive of a latin plaintiff? If so, when? If not, why not?
Xeones|7.13.09 @ 1:06PM|#
5 minutes on each side, with black pepper and olive
oil.
Actually, Supreme Court nominees, like fugu, can be highly toxic
when eaten if not prepared by a trained chef. I hope you're
careful, Zeb.
Naga Sadow|7.13.09 @ 1:07PM|#
TAO,
John's called you out for your pussy whipped liberal behavior.
Better not tell him about your draft dodging and flag burning.
kilroy|7.13.09 @ 1:07PM|#
What is the airspeed velocity of an unladen swallow?
African or European?
I thought you meant airline stewardess'. Wait, maybe question still
makes sense.
|7.13.09 @ 1:11PM|#
If Sotomayor were white and had tried to fuck over a bunch of minority plaintiffs the way she did in Ricci, she would be tagged as a racist and would have gotten no where near the Supreme Court. I don't see how the fact that she is a New York Puerto Rican somehow makes her conduct above reproach.
|7.13.09 @ 1:12PM|#
How to Grill a Nominee
On a spit over an open flame using a mild sauce with just a touch
of lemon.
Naga Sadow|7.13.09 @ 1:13PM|#
Dammit people! That Epi post was a Monty Python quote! I just
assumed everyone already knew!
Episiarch,
How do you deal with all this ignorance that you seem to swim
through?
|7.13.09 @ 1:14PM|#
Think about this for a second. Robert Bork gets called a klansman on the Senate floor for twenty years before objecting to the Civil Rights Act on the grounds that it was beyond the commerce clause power of Congress (something like 80% of the people on here would agree with) and that is ok. Sotomayor goes to bizzare lengths to keep a bunch of white firefighters from getting a hearing both before the 2nd Circuit en banc and the Supreme Court and anyone who wonders if perhaps she doesn't like white people is just being a victim. Yeah, that makes sense.
The Angry Optimist|7.13.09 @ 1:15PM|#
you know, John, you have a very bad habit of constructing
strawmen. I never said that her race, gender or place of origin
makes her "conduct above reproach", did I? No, so quit making shit
up.
I mean, the D.C. Circuit denied an en banc hearing to
Mayor Fenty and the anti-gun crowd, even though Heller
arguably presented "novel", important questions, but I'm going to
be you didn't get all fucking riled up about that, did you
now?
|7.13.09 @ 1:17PM|#
"I mean, the D.C. Circuit denied an en banc hearing to Mayor
Fenty and the anti-gun crowd, even though Heller arguably presented
"novel", important questions, but I'm going to be you didn't get
all fucking riled up about that, did you now?"
But the DC Circuit wrote an opinion that had precidential value and
created an opening for Fenty to go to the Supreme Court. If they
had just issued an order, you might have thought that gee maybe
they were trying to screw Fenty. It would have been outragous.
Heller clearly deserved an opinion just like Ricci did.
|7.13.09 @ 1:18PM|#
AO,
It is the failure to write an opinion and the denial of a rehearing
that makes it so outragous. If she had bothered to write an
opinion, you would have a point. But she didn't so you don't.
|7.13.09 @ 1:21PM|#
While I agree with TAO most of the time, I have to say I think John is absolutely right in this instance. One need not be a victim to think a judge is wrong and for the given reasons.
The Angry Optimist|7.13.09 @ 1:21PM|#
goodness gracious. First it's the fact that she voted to deny an
en banc hearing, which means she hates white people. Then
it's the failure to write an opinion, which means she hates white
people.
Why do I get the sense the result is going to be the same from you
no matter what? Because you like being the V-I-C-T-I-M. You want to
rub it in people's faces that someone who has attained a place in
the Corridors of Power hates white men, because that makes you
oppressed, and you want to use that as a bludgeon.
The Angry Optimist|7.13.09 @ 1:24PM|#
Nick - here's the thing: one a limited point, I actually agree with John. The case should have been heard and given an opinion. On that limited basis, however, John has gone into Hannityland and decided to interpret that one decision in the procedure of Ricci to decide that Sonia Sotomayor hates white people. It's fucking. lunacy.
hmm|7.13.09 @ 1:25PM|#
How to Grill a Nominee
I find a light coat of butter, some lemon juice, and a nice lemon
pepper seasoning over a medium flame is the best way to grill any
judiciary.
|7.13.09 @ 1:27PM|#
"First it's the fact that she voted to deny an en banc hearing,
which means she hates white people. Then it's the failure to write
an opinion, which means she hates white people."
No, it is both. It is the fact that she refused to write and
opinion apparently in conflict with the circuit rules. Then, when
another judge asked for an enbanc hearing, she voted against that.
She left the plaintiffs with no releif and no precidential opinion
to ask for cert on. I would also point out that the four justices
who dissented at the Supreme Court were very critical of her
failure to write an opinion. They agreed with her result but
thought she handled the case terribly.
Stop throwing out insults and look at what she did. If you think
her motives were pure, fine. Then explain why she didn't write an
opinion when even the dissenting justices at the Supreme Court
thought she should have?
|7.13.09 @ 1:29PM|#
"Nick - here's the thing: one a limited point, I actually agree
with John. The case should have been heard and given an
opinion."
You just won't assign anything but the best of motives to her. Okay
fine. Then explain why she messed up this case, involving civil
rights law and a white plaintiff but not others? Please give
examples of other cases where she was so dismissive and made
similiar mistakes with minority plaintiffs. If there are not any,
why did she decide to go off the rails in this particular
case?
It seems your only answer is that we must assume she can't be a
racist. Why not? If she were white and the plaintiffs Latin, that
is exactly what people would assume. Why should she get a pass?
The Angry Optimist|7.13.09 @ 1:33PM|#
Even if you assume that she did it to "bury" the case and avoid
having a direct ruling, you cannot assume "racism". You can assume
poor decision-making; you can assume over-politicization; shit,
man, I'll just assume that she didn't write an opinion because she
was the #1 pick since Election Day 2008 for a replacement Justice,
and wanted to avoid controversy.
There are a million reasons, some malicious and some not, that
explain this, but you (of course!) leap to racism. Why? Because the
Left has hammered you guys with racism all these years, and you
want to sling it back.
|7.13.09 @ 1:34PM|#
Episiarch,
How do you deal with all this ignorance that you seem to swim
through?
I revel in it, Naga.
kilroy|7.13.09 @ 1:35PM|#
"Dammit people! That Epi post was a Monty Python quote! I just
assumed everyone already knew! "
Yeah, I knew it was from Python, now chill the fuck out.
|7.13.09 @ 1:35PM|#
TAO, I don't necessarily agree with John that she hates white people, but you can't deny from her own words and actions or lack thereof that she favors minorities in her judging. She then didn't feel the need to explain why she decided how she did.
Peter|7.13.09 @ 1:39PM|#
Then explain why she messed up this case...
Maybe she took a dive so that the SCOTUS would have to rule on the
case? If it is, as you say, that she hasn't ever done this before
with a minority, has she ever done it in a different case involving
whites? Does it even matter since she won't change the dynamic of
the court (Souter dissented)?
|7.13.09 @ 1:39PM|#
"There are a million reasons, some malicious and some not, that
explain this, but you (of course!) leap to racism. Why? Because the
Left has hammered you guys with racism all these years, and you
want to sling it back."
Because we need to have the same standard for everyone. I didn't
make up the standard of assuming racist motives for every decision
that is unfair or unfairly affects another race. But that is the
standard we have. And it ought to be applied equally. Further, it
will never change unless and until it is applied to both sides. As
long as it is only applied to one race, it will never end.
The Angry Optimist|7.13.09 @ 1:40PM|#
Nick - I believe somewhere, someone has demonstrated via raw
data on her decisions, that she doesn't favor discrimination claims
at all:
In 50 discrimination claims, Sotomayor backs plaintiffs three
times.
I consider myself somewhat of an expert on modern
Kulturkampf, and the Right's desperation to turn this into
a "racism" claim is solely for the purpose of sticking it in the
Left's eye. If they can crow "RACISM" enough, they think the Left
will either (a)get the point and stop throwing around the R word or
(b) be exposed for hypocrites.
It's not going to work.
|7.13.09 @ 1:41PM|#
"Maybe she took a dive so that the SCOTUS would have to rule on
the case?"
If she wanted SCOTUS to rule, she would have written a long and
provocotive opinion. It is very rare for SCOTUS to rule on a case
where there wasn't an opinion at the Circuit level. She can do the
math just as easily as you and I can. She had to know SCOTUS was
likly to rule for the firefighters.
The Angry Optimist|7.13.09 @ 1:42PM|#
Because we need to have the same standard for everyone. I didn't make up the standard of assuming racist motives for every decision that is unfair or unfairly affects another race. But that is the standard we have. And it ought to be applied equally. Further, it will never change unless and until it is applied to both sides. As long as it is only applied to one race, it will never end.
Fuck off with that lofty bullshit, John. you act as if it's your
insufferable burden to bear that you "must" call things "racism".
Bull-freaking-shit, dude. You're enjoying this.
And didn't your momma teach you that "two wrongs don't make a
right"?
|7.13.09 @ 1:43PM|#
TAO, for the same reason John cannot assume racism, you should not assume she is not racist. She may be, or like you say, she may have wanted to avoid controversy expecting to be picked for SCOTUS. If she assumed she would be picked for SCOTUS, why is that? Could it be that she expected a Democrat to be president (she would have been in agreement with most people in that assumption) and in being a minority female she would be on Hillary or Barack's short list? Either way, her demographic played a role in her judgement and finally, if she did want to avoid controversy by not giving an opinion, shame on her for dereliction of duty in a case before her. If her own political future meant more than serving justice she should be refused appointment on that fact alone.
|7.13.09 @ 1:43PM|#
"If they can crow "RACISM" enough, they think the Left will
either (a)get the point and stop throwing around the R word or (b)
be exposed for hypocrites.
It's not going to work."
I don't know. Maybe not. Ultimately, we will never get anywhere on
race in this country if everyone is like you and thinks it is okay
to hurl the term racist at any white person but think minorities'
motives are always effectively above reproach.
individual|7.13.09 @ 1:43PM|#
I guess my reasoning was off... just because Article I Section 8
delegates powers to Congress, that doesn't mean they can't return
that power to private hands. Right? I mean you can privatize the
post office if you want.
It's just that Congress is not "coining" money they are borrowing
it from Wall Street. Therefore they have abdicated the power to
coin money and are enacting a "necessary and proper" law for "the
general welfare" instead of doing what the freaking Constitution
says. I'm just pissed off, is all.
The Angry Optimist|7.13.09 @ 1:45PM|#
if everyone is like you and thinks it is okay to hurl the term racist at any white person but think minorities' motives are always effectively above reproach.
I don't think it's OK in either case, you dumb SOB.
Please, for the love of Christ, stop constructing strawmen.
|7.13.09 @ 1:46PM|#
AO,
Nick has it exactly right. Neither one of us can look into the
woman's heart. But it is at least a fair bet that she did it for
racist means. I mean really in case you haven't noticed people tend
not to like each other. A lot of whites don't like Puerto Ricans
and the feeling is very mutual. Why are you so loath to admit the
possibility that she did it for racial motives? You sure as hell
wouldn't be if she were white.
That is incredibly corrosive on civil discourse. We can never have
an honest discourse about race and civil rights in this country
because people like you insist that the motives of minorities must
be assumed to be pure whereas white people are always suspect. That
is not healthy and does nothing to solve the racial problems we
have.
The Angry Optimist|7.13.09 @ 1:48PM|#
in other words, John thinks we all have to be dragged into the
mud before we make any progress.
john, please shut up now. the adults are speaking.
TAO, for the same reason John cannot assume racism, you should not assume she is not racist.
Hey, as an optimist, I assume the best of people (first of
all), and second of all, live my life by the maxim "Never attribute
to malice what you can attribute to stupidity". That's largely
tautological when you talk about the word "can" there, but I am
intellectually secure in the idea that I can attribute this poor
decisionmaking to stupidity and not to malice, especially given the
statistics.
|7.13.09 @ 1:48PM|#
Sorry, TAO. SCOTUSblog is blocked from my work computer. Oddly, Hit & Run is not. It does seem odd, however, that if she has ruled so consistently with previous race cases, she would have an opinion down pat for Ricci. Something about this case affected her judgement. Senators should be asking her what that was.
The Angry Optimist|7.13.09 @ 1:48PM|#
because people like you insist that the motives of minorities must be assumed to be pure whereas white people are always suspect.
Die in a fire, John. I just told you I don't think anything like
that.
|7.13.09 @ 1:51PM|#
I mean you can privatize the post office if you
want.
Not without an Amendment to the Constitution.
|7.13.09 @ 1:53PM|#
"john, please shut up now. the adults are speaking."
Translation: "All my bases belong to you John and I have nothing
else to say."
If appealing to our better angels is the way AO, why then should
the left ever stop sliming people with the race card? I mean it is
very effective. They kept Bork off the Supreme Court with it. They
can cow virtually any white person out of criticizing a minority.
Why would they ever stop?
Regardless, you and I don't make the rules. The rules have been set
for years. And under the rules, if Sotomayor were white, she would
be toast for the Ricci decision. Should the rules just not apply to
her? You can say the rule is bad all you want but that doesn't
change the fact that a white person could never get away with what
she did in Ricci.
|7.13.09 @ 1:53PM|#
TAO, I too, am an optimist. And I think your theory is normally correct, but should be reversed when discussing the motives of politicians.
|7.13.09 @ 1:53PM|#
"Die in a fire, John. I just told you I don't think anything
like that."
So you admit that Sotomayor may be a racist? Or is it that you
think that no one is a racist?
The Angry Optimist|7.13.09 @ 1:56PM|#
False dichotomy, John. How in the world did you get through law
school with faulty logic like that?
First you set up this ridiculous idea that "TAO thinks minorities
cannot be racist" and then when I tell you that I don't think
anything like that, you think that that response
necessarily implies a result in this immediate case.
Dear Lord, you are not a smart man.
|7.13.09 @ 1:56PM|#
I think John may be racist but he may also be right. Takes one to know one, perhaps?
hmm|7.13.09 @ 1:57PM|#
Regardless, you and I don't make the rules. The rules have been set for years. And under the rules, if Sotomayor were white, she would be toast for the Ricci decision. Should the rules just not apply to her? You can say the rule is bad all you want but that doesn't change the fact that a white person could never get away with what she did in Ricci.
Without the qualifier at the end, which is pretty weak, that
statement looks like a ringing endorsement of legal positivism.
(just an observation)
ChrisO|7.13.09 @ 2:00PM|#
Randy Barnett's suggestion is a great one. Unfortunately, it presupposes that the jackasses populating the Senate have actually read the Constitution and have some basic understanding of it.
T|7.13.09 @ 2:02PM|#
Not without an Amendment to the Constitution.
Bullshit. You can have the postmaster general supervise the
contracts that allow for a third party to deliver the mail. Is the
contract hauling of bulk mail the PO uses unconstitutional? No?
Than why it would be unconstitutional to subcontract the entire
process?
|7.13.09 @ 2:06PM|#
"First you set up this ridiculous idea that "TAO thinks
minorities cannot be racist" and then when I tell you that I don't
think anything like that, you think that that response necessarily
implies a result in this immediate case."
So it is the case that Sotomayor may be a racist. Now we are left
with the question of why do you think she is not one? I think she
is one because she treated a bunch of white plaintiffs in a very
unfair way and tried to bury what turned out to be a meritorious
claim. What is your evidence that she is not other than you just
assume she couldn't be?
|7.13.09 @ 2:07PM|#
"Without the qualifier at the end, which is pretty weak, that
statement looks like a ringing endorsement of legal positivism.
(just an observation)"
No we are talking about politics not law. It is a poltical decision
to allow her to be on the court. The political rules are what they
are. All I am saying is that the standard of public behavior ought
to be the same for everyone.
|7.13.09 @ 2:09PM|#
"Dear Lord, you are not a smart man."
No I am quite smart. You just don't have a good response to my
points so you insult me instead.
The Angry Optimist|7.13.09 @ 2:12PM|#
*sigh* - John, like I said, this isn't how evidence; it's about your immediate interpretation thereof. I just think it's funny that I already (a) gave you my maxim as to why it's likely she isn't and (b) a million method of interpretation that don't require a leap to the "R word". It's very telling that you're bitterly clinging to that lone interpretation of yours.
The Angry Optimist|7.13.09 @ 2:13PM|#
No I am quite smart.
No, you really aren't. It's been strawmen, false dichotomies, red
herrings and a whole bunch of racebaiting the whole way.
Maybe you are smart. But that would make you an evil, dishonest
dick, too.
|7.13.09 @ 2:18PM|#
"I just think it's funny that I already (a) gave you my maxim as
to why it's likely she isn't and (b) a million method of
interpretation that don't require a leap to the "R word". It's very
telling that you're bitterly clinging to that lone interpretation
of yours."
Your maxim seems to be that we assume everyone is not a racist.
That seems at odds with reality given the fact that there seem to
be lots of racists out there. You give alternative explanation for
her behavior but no reason beyond hope that those are more likely
than her actually being a racist. Further, even your explanations
are pretty damning. If she did it for politcal reasons, she was
willing to screw over deserving plaintiffs in order to keep her
sorry butt up for a SCOTUS appointment. That may be worse than
being a racist. If she said she did it because she didn't think
white people deserved protection under civil rights law, I could
almost respect that. But screwing a deserving person to get ahead
is about as low as you can go.
I am not bitterly clinging to anything. You project.
JB|7.13.09 @ 2:27PM|#
they think the Left will either (a)get the point and stop
throwing around the R word or (b) be exposed for hypocrites.
It's not going to work.
To be a Leftist is to be a hypocrite. They say they want to help
people, but they attempt to do so by pointing a gun at other people
and demanding their money. They don't want to help people, they
want to talk about helping people...they get off on it.
Fluffy|7.13.09 @ 2:31PM|#
It is the failure to write an opinion and the denial of a
rehearing that makes it so outragous.
John, the article you link to indicates that it was the other
judges on the court who crafted a compromise to have the ruling
issued in the way that it was.
Personally, I think that's a crap approach to the law, but it seems
to be a pretty common practice. The SCOTUS has gone after
compromises at times as well. I dislike Sotomayor as a nominee as
well, but aren't you singling her out for a common judicial
practice? And aren't you making her the author and driving force of
the compromise in question, when your article makes it sound as if
it was others?
The Angry Optimist|7.13.09 @ 2:31PM|#
OK, John, believe what you like. It's hilarious that you insist
you're above the partisan fray here, when you have 999,999 ways of
interpretation that lead to "I'm not going to call her the "R"
word" but you cling to the one that lets you do
that very thing.
Also, I take it you're the only one who missed the statistics
SCOTUSBLOG provided. FAIL.
|7.13.09 @ 2:35PM|#
"I dislike Sotomayor as a nominee as well, but aren't you
singling her out for a common judicial practice?"
It is a practice that violated the circuit rules. You are only
supposed to do it when the decision is unanomous.
"And aren't you making her the author and driving force of the
compromise in question, when your article makes it sound as if it
was others?"
Why does it matter if she was the driving force? She still did it
and obviously supported it. The possibility that it wasn't her
idea, doesn't seem to let her off the hook.
individual|7.13.09 @ 2:39PM|#
T | July 13, 2009, 2:02pm | #
What about the "dormant commerce clause" idea which basically says
the areas Congress has power are vacated by everyone else? Thus, a
State may not regulate commerce unilaterally if there is potential
for interstate regulations, and a bank may not coin money for the
Treasury if there is potential for the Congress to coin
money?
And yes, TAO, there is a HUGE difference, because the money supply
would be set by law rather than private board meetings.
|7.13.09 @ 2:39PM|#
Is the contract hauling of bulk mail the PO uses
unconstitutional? No?
I wouldn't say no. Just because they have done something, doesn't
mean it is Constitutional.
|7.13.09 @ 2:40PM|#
"It's hilarious that you insist you're above the partisan fray
here, when you have 999,999 ways of interpretation that lead to
"I'm not going to call her the "R" word" but you cling to the one
that lets you do that very thing."
First, the other ways of interpreting her actions make her look
either incompetant or a political scoundral willing to screw over
deserving plaintiffs to get ahead. Either way she should not get a
spot on the court.
Second, there are not 9 million ways to interpret her actions.
There are three or four ways, one of which happens to be racial
malace. I think given her history, the now infamous magic latina
speech and such, it is at least a decent bet she did do it out of
racial animus. We will never know for sure, but it is at least
possible.
It is a shame you have such a hard time admitting that there is a
reasonable possibility she is a racist. You are very good at
admitting that minorities might be racist in theory but you seem
unwilling to admit that any particular minority could be a racist
in a particular instance. And of course you would never bend over
backwards to give a white person such a benefit of the doubt. I
don't remmeber but I can't recall you on here argueing that Trent
Lott didn't really mean to endorse Jim Crow when he praised Strom
Thurmond. It was assumed he said that because he was a racist.
Maybe you have warm feelings for old Trent and feel he was treated
unfairly (I don't think he was for the record) but I doubt it.
The Angry Optimist|7.13.09 @ 2:46PM|#
. You are very good at admitting that minorities might be racist in theory but you seem unwilling to admit that any particular minority could be a racist in a particular instance.
Do you think this somehow makes me a liar or incoherent? That I
don't accept your interpretation in this particular instance? Like
I said, you're not very smart.
I can't recall you on here argueing that Trent Lott didn't really mean to endorse Jim Crow when he praised Strom Thurmond
Irrelevant non-sequitur and attempt at a red herring. Completely
incoherent.
This is what you said in response to me a few hours ago:
"The bitch had it out for the plaintiffs in that case."
and
"I can't explain her behavior in that case by anything other than
malace. "
So now it's "there are many interpretations, and I, John,
choose malice and racism as my defaults". I wonder why you
do that, John? Oh, wait, no I don't. You're a hack.
individual|7.13.09 @ 2:48PM|#
More generally, I'm very confused about how the individual rights are interpreted in the U.S.... if the 14th Amendment incorporates the 5th Amendment, how are zoning laws constitutional? If the 14th Amendment says "No State shall... deny to any person within its jurisdiction the equal protection of the laws" then how is banning gay marriage constitutional? If the 10th Amendment has not been repealed then how is bankruptcy a Federal law?
Barack Obama|7.13.09 @ 2:49PM|#
" Either way, her demographic played a role in her judgement and
finally, if she did want to avoid controversy by not giving an
opinion, shame on her for dereliction of duty in a case before
her"
Note to self:
Get law passed permiting circuit court judges to simply vote
"present".
One of Tony's Reason Rubes
enough.about.palin@gmail.com
|7.13.09 @ 2:53PM|#
"can't recall you on here argueing that Trent Lott didn't really
mean to endorse Jim Crow when he praised Strom Thurmond
Irrelevant non-sequitur and attempt at a red herring. Completely
incoherent."
Throwing out misapplied latin terms doesn't help your case. Trent
Lott did something just like Sotomayor did something. In both cases
we will never know what their motives were. In both cases it is
possible that they did what they did out of racial malace. Maybe
Lott really does pine for the days of Jim Crow and that is why he
said that life would be so good if Thurmond were President. Or
maybe he was just being a nice guy to an old friend and meant
nothing like that. We will never know.
In the same way maybe Sotomayor really doesn't like white people
and went out of her way to screw the plaintiffs in Ricci. Or maybe
she is incompetant or was just playing political games. Just like
in the Lott case we will never know for sure.
But in the Lott case, Lott's motives were assumed to be racist and
he was run out of the Senate. It was a decision I assume you had no
problem with. Yet in Sotomayer's case you say that we should assume
the benign explination. Why? The two cases are very similiar in
that they both involve the potentially racist motivation of someone
doing or saying something.
I don't know AO, that seems pretty clear to me. I guess I have a
bad habbit of assuming other people see arguments as fast or as
quickly as I do and fail to explain things through. Otherwise I
can't see how you could possibly not see the pretty obvious
connection between those two events.
The Angry Optimist|7.13.09 @ 2:57PM|#
John - I saw what you were doing. It continues to be irrelevant
because it does not illuminate the partisan "logic" you're
making.
so, what would you say if I said that I didn't immediately
interpret Lott as a racist? Ohhh, shit, there goes your point, out
the window.
Like I said, red herring.
|7.13.09 @ 2:57PM|#
"how do you feel about article 1 section 10, which explicitly forbids states from accepting anything but gold and silver as tender?"
|7.13.09 @ 3:04PM|#
"so, what would you say if I said that I didn't immediately
interpret Lott as a racist? Ohhh, shit, there goes your point, out
the window."
So you think Lott got a raw deal? Really? I don't think he did. I
think he is a racist Southern Good old boy who let the mask slip
for a moment. Furhter, Lott was an offhand statement. Sotomayor was
a calculated set of actions designed to screw a deserving
plaintiff. Even if you give Lott the benefit of the doubt, which I
don't, there is less reason to give Sotomayor the benefit.
Of course you admit over and over that it is possible she is a
racist. But you will not give a possibility to it. Is it a 10%
chance? What number above zero is the chance that she acted out of
racial malace? I would say it is at least 30 to 40 percent, which
is pretty damned high for a SCOTUS nominee.
|7.13.09 @ 3:05PM|#
Further, AO, if it is, as you admit, that it is possible she is a racist, why do you call me derranged for thinking she is? At worst I am more cynical than you. Why is it such a sin on my part for me to assume the worst about her and Lott?
The Angry Optimist|7.13.09 @ 3:09PM|#
you're not cynical, John: you're a partisan. you cloak it in
cynicism and "reality", but really, you're more than overjoyed to
call an ethnic minority from the Left a racist. It's
vindication/vengeance against that imaginary period of time when
all of Intellgentsia hated white men, and now it's your turn to
turn the weapons of the Left against them.
you're so desperate to do it you can smell it. Dude, I listen to
RWRadio a lot, and I even think it's
getting pathetic.
|7.13.09 @ 3:13PM|#
If I am a partisian AO, why do I also dilike Lott so much?
"but really, you're more than overjoyed to call an ethnic minority
from the Left a racist."
Well maybe if Sotomayor hadn't you know acted like a racist, she
wouldn't be called one. Just a thought.
Further, if I am overjoyed why are you so afraid? As I said above,
there are a lot of racists out there. I don't see how it is so
beyond the realm of possibility that Sotomayor is one. Why are you
so afraid to admit that? What if it is true? What will you do
then?
The Angry Optimist|7.13.09 @ 3:15PM|#
I'm not afraid of anything, John. Please go die now. "Not agreeing with you =/= fear".
|7.13.09 @ 3:20PM|#
Hit a nerve there AO? Okay, if you disagreeing with me does not make you afraid to admit that Sotomayor is a racist, then my disagreeing with you doesn't make me desparate to say she is. Fair enough?
nebby|7.13.09 @ 3:22PM|#
Malice.. it is malice.. fucking A, he corrected you and was nice enough not to use the (sic), at least pay attention.
The Angry Optimist|7.13.09 @ 3:32PM|#
no, John, because like I said, you instantly grab hold of the worst possible interpretation for partisan reasons. What do I gain by refusing to accept your interpretation? Do you think that I am die-hard for this nominee? I honestly don't give a shit; you do, and therefore your motives are way more suspect.
The Angry Optimist|7.13.09 @ 3:33PM|#
anyway, you haven't met your Burden of Proof. you asserted the Affirmative Position: now go prove it beyond engaging in Interpretative Dance.
|7.13.09 @ 3:39PM|#
"no, John, because like I said, you instantly grab hold of the
worst possible interpretation for partisan reasons."
No. I assume the worst because people generally are guilty of the
worst. If it were a partisian thing I would have defended Lott but
I didn't.
"What do I gain by refusing to accept your interpretation? Do you
think that I am die-hard for this nominee? I honestly don't give a
shit; you do, and therefore your motives are way more
suspect."
I think you gain the opportunity not to have to take a politically
incorrect position. They could find a memo with Sotomayor admitting
she did it for racist reasons and you would find a way to obfiscate
about it because you don't have the balls to admit that a minority
is a no shit racist. I am sorry the Democratic Party took you
balls.
|7.13.09 @ 3:40PM|#
AO,
My proof is her inexplicable handling of the Ricci case. You have
no proof beyond hope.
The Angry Optimist|7.13.09 @ 3:41PM|#
see, John, in your world of Hannityland, anyone who doesn't agree with you must be a Democrat. It doesn't work that way. Some of us just think you're a retard. And if you think I am somehow ascared of being un-PC, then you're even more of a mongoloid than I gave you credit for.
The Angry Optimist|7.13.09 @ 3:43PM|#
Proof of racism is the fact that you cannot explain why she
decided as she did?
Fine, counterproof: 47 cases where Sotomayor did NOT side with the
filer of a Title VII or Title IX claim.
The Angry Optimist|7.13.09 @ 3:47PM|#
see, I have 47 cases. You have four. And yet, you think you're justified in calling her a racist. BIG FUCKING SHOCK.
|7.13.09 @ 3:48PM|#
"Fine, counterproof: 47 cases where Sotomayor did NOT side with
the filer of a Title VII or Title IX claim."
So what? First, how many of those plaintiffs she denied were white?
Second, even if they were all minorities, maybe their cases were so
without merit even she couldn't help them. Without examining each
case individually there is no way to tell. The raw number means
nothing.
The Angry Optimist|7.13.09 @ 3:50PM|#
keep clinging, John. And since when has it mattered to a racist if their preferred race has a case "with merit"? You're so close to saying it!
|7.13.09 @ 3:53PM|#
AO,
Again the numbers mean nothing. You have to look at the cases. If
you have facts of cases involving minority disputes with whites
where she acted with the whites and against the minorities in a
close case, present it. We have one real documented case where she
totaly screwed over white plaintiffs for very inexplicable reasons.
If you have facts, as opposed to meaningless numbers that show
otherwise, present them.
The Angry Optimist|7.13.09 @ 3:56PM|#
We have one real documented case where she totaly screwed over white plaintiffs for very inexplicable reasons.
Yes. Apparently you find this compelling enough to smear someone. I
don't. Case closed.
|7.13.09 @ 3:59PM|#
Yeah AO,
Screwing over deserving plaintiffs for no good reason is a really
bad thing and says very bad things about your character. But maybe
that is just me.
|7.13.09 @ 4:03PM|#
All I need to know to dislike Sotomayor is that she has been
endorsed by every police union, numerous police chiefs and Louis
Freeh. These things cannot be good signs.
Of course, these things will only help her with conservatives.
whether they will overcome the "wise Latina woman" quote and the
New Haven firefighters' case remain to be seen.
I agree with Episiarch, BHO could have made a lot of worse picks
than this one.
The Angry Optimist|7.13.09 @ 4:03PM|#
is that the same thing as calling someone a racist? yeah, no it isn't.
|7.13.09 @ 4:08PM|#
Key passages from the judge's opening statement:
"Throughout my seventeen years on the bench, I have witnessed the
human consequences of my decisions. Those decisions have not been
made to serve the interests of any one litigant, but always to
serve the larger interest of impartial justice."
And
"In the past month, many Senators have asked me about my judicial
philosophy. It is simple: fidelity to the law. The task of a judge
is not to make the law- it is to apply the law. . . . In each [of
my cases as a federal judge] I have applied the law to the facts at
hand. . . . My personal and professional experiences help me listen
and understand, with the law always commanding the result in every
case."
|7.13.09 @ 4:10PM|#
I think John and TAO are on the verge of orgasm. Now where did I leave that raincoat?
Fluffy|7.13.09 @ 4:12PM|#
John, do you have a link for the Taylor article?
Your excerpt makes it sound interesting.
|7.13.09 @ 4:34PM|#
http://ninthjustice.nationaljournal.com/2009/07/how-ricci-almost.php
There you are fluffy.
|7.13.09 @ 4:57PM|#
I don't know about supreme court picks, but if Obama's nominee for Surgeon-General gives me a lecture about losing weight I'll laugh my fat lazy ass off.
|7.13.09 @ 5:24PM|#
And given that it was a 5-4 split, you're hard-pressed to
say that she was demonstrably wrong or malevolent in the
process.
On the issue of whether it should have been summarily dismissed,
the Justices were 9-0 against Sotomayor. Even the dissenters
criticized that.
Jes' keeping the record straight, is all.
JB|7.13.09 @ 8:30PM|#
Anyone want to defend these guys as enlightened latinos?
http://news.yahoo.com/s/ap/20090713/ap_on_re_us/us_florida_couple_slain
|7.14.09 @ 11:52PM|#
# JB | July 13, 2009, 2:27pm | #
# To be a Leftist is to be a hypocrite. ...
# They don't want to help people, they want
# to talk about helping people...they
# get off on it.
I think you're pretty close. By talking about helping people as
they chat-up the starry-eyed or fire-eyed lefty chicks, I'm pretty
sure that lefty guys are convinced they will, in fact, soon be
getting off. But after a long time of using this strategy, it
ultimately backfires as behavioral conditioning sets in: talking
about helping people becomes a habit, persisting even long after
the motivation for sex disappears from the conversations. Perhaps
you are right: At that point, then, the talking itself may well
replace sexual gratification.
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