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?

Comments

[Senator Cheatim]

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?

[Warren]

Please list everything that isn't interstate commerce.

[franz kafka]

Ask em if they believe in protected rights for bestiality?

[PantsFan]

but they won't do that.

[Jeff P]

I foresee the entire chamber breaking out in an improv redition of the Schoolhouse Rock preamble song...

[John]

Please explain why you voted to deny the Ricci plaintiffs an en banc hearing before the 2nd Circuit.

[James Anderson Merritt]

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?

[Episiarch]

What is your name?

What is your quest?

What is the airspeed velocity of an unladen swallow?

[schwa]

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]

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]

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?

[R C Dean]

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.

[kilroy]

"How to Grill a Nominee"

Don't forget the salsa!

[The Angry Optimist]

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.

[John]

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.

[Episiarch]

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.

[John]

"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.

[John]

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]

Ask her "tough questions" and upload her answers to youtube?

*shrugs*

[The Angry Optimist]

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.

[Zeb]

5 minutes on each side, with black pepper and olive oil.

[John]

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]

TAO, well rather than the government coining money, you have the Fed coining money. It's not right, darnit.

[John]

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.

[ChicagoTom]

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.

[Nick]

What is the airspeed velocity of an unladen swallow?

African or European?

[The Angry Optimist]

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.

[Episiarch]

African or European?

I...I don't know. AIIIGHHHH

[John]

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]

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]

TAO,

John's called you out for your pussy whipped liberal behavior. Better not tell him about your draft dodging and flag burning.

[kilroy]

What is the airspeed velocity of an unladen swallow?

African or European?

I thought you meant airline stewardess'. Wait, maybe question still makes sense.

[Rich]

Is "Heyeah come da judge" racist? Why or why not?

[John]

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.

[J sub D]

How to Grill a Nominee

On a spit over an open flame using a mild sauce with just a touch of lemon.

[Naga Sadow]

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?

[John]

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]

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?

[John]

"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.

[John]

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.

[Nick]

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]

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]

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]

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.

[John]

"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?

[John]

"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]

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.

[Episiarch]

Episiarch,

How do you deal with all this ignorance that you seem to swim through?

I revel in it, Naga.

[kilroy]

"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.

[Nick]

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]

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)?

[John]

"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]

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.

[John]

"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]

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"?

[Nick]

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.

[John]

"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]

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]

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.

[John]

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]

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.

[Nick]

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]

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.

[hmm]

Don't drive(post) angry.

[Nick]

I mean you can privatize the post office if you want.

Not without an Amendment to the Constitution.

[John]

"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.

[Nick]

TAO, I too, am an optimist. And I think your theory is normally correct, but should be reversed when discussing the motives of politicians.

[John]

"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]

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.

[Nick]

I think John may be racist but he may also be right. Takes one to know one, perhaps?

[hmm]

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)

[The Angry Optimist]

Shorter John: "Yes, two wrongs make a right".

[ChrisO]

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]

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?

[John]

"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?

[John]

"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.

[John]

"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]

*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]

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.

[John]

"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]

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]

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]

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.

[John]

"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]

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.

[Nick]

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.

[John]

"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]

. 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]

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]

" 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
[e-mail]

[John]

"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]

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.

[yonemoto]

"how do you feel about article 1 section 10, which explicitly forbids states from accepting anything but gold and silver as tender?"

[RuthenianCowboy]

"How to Grill a Nominee"

Don't forget the salsa!

Salsa? RACIST!

[John]

"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.

[John]

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]

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.

[John]

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]

I'm not afraid of anything, John. Please go die now. "Not agreeing with you =/= fear".

[John]

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]

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]

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]

anyway, you haven't met your Burden of Proof. you asserted the Affirmative Position: now go prove it beyond engaging in Interpretative Dance.

[John]

"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.

[John]

AO,

My proof is her inexplicable handling of the Ricci case. You have no proof beyond hope.

[The Angry Optimist]

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]

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]

see, I have 47 cases. You have four. And yet, you think you're justified in calling her a racist. BIG FUCKING SHOCK.

[John]

"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]

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!

[John]

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]

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.

[John]

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.

[Isaac Bartram]

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]

is that the same thing as calling someone a racist? yeah, no it isn't.

[One of Tony\'s Reason Rubes]

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."

[One of Tony\'s Reason Rubes]

I think John and TAO are on the verge of orgasm. Now where did I leave that raincoat?

[Fluffy]

John, do you have a link for the Taylor article?

Your excerpt makes it sound interesting.

[John]

http://ninthjustice.nationaljournal.com/2009/07/how-ricci-almost.php

There you are fluffy.

[Isaac Bartram]

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.

[R C Dean]

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]

Anyone want to defend these guys as enlightened latinos?

http://news.yahoo.com/s/ap/20090713/ap_on_re_us/us_florida_couple_slain

[Abner MacGillicuddy]

Your point, JB?

[James Anderson Merritt]

# 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.