KBJ: "I would note that I am pleased to be the sixth woman nominated to serve on the Supreme Court."

How quickly we forget about Harriet Miers.

Judge Jackson has submitted her responses to written questions. I haven't read through the entire packet, but I did find one error. She wrote on p. 64 of the PDF:

Finally, I would note that I am pleased to be the sixth woman nominated to serve on the Supreme Court.

Harriet Miers would beg to differ.

Comments

[DRM]

C’mon, Josh, what do you expect? She’s not a biologist.

[DaivdBehar]

I agree withis explanation. Counting to 10 is a kindergarten math challenge, and she is a lawyer.

Sex identification is a 3 year old, preschool cogntive challenge, and she is a lawyer.

[nobody 2]

Harriet Miers is a Republican, which means she’s not a woman according to Democrat rules.

[Gasman]

One more time, for Roman Hruska.
To paraphrase his remark during senate judicial committee hearings, ‘even the mediocre deserve representation on the court’.

[KeithK]

I think it’s extremely inappropriate for her to speculate on how many of her predecessors were women. How would she know?

[DaivdBehar]

Laugh of the Day.

[Intelligent Mr Toad]

RE: “How quickly we forget about Harriet Miers”

If only we could.

[AmosArch]

Harriet Miers would be an improvement on some of the Dems judges but then again so would a dice roll.

[MatthewSlyfield]

Harriet Miers would be an improvement on some of the Dems judges but then again so would a zucchini.

FTFY

[Sarcastr0]

This is indeed the level of response this Blackman post deserves.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

His is informative. All above yours are funny. Yours is just sour grapes that you have neither a blog nor a sense of humor.

[Noscitur a sociis]

All above yours are funny.

De gustibus etc., but come on.

[Stephen Lathrop]

This right-wing humor you mention. Tell me what it is like. The examples lack wit. They are neither mordant, nor sardonic—although either might apply if there were wit. There is no parody. Mark Twain wrote an essay to argue that a dental drill striking a nerve was not painful, but instead sublime. But he wasn’t serious, he was ironic. From the examples you note we get the pain, but not the irony.

[bevis the lumberjack]

The zucchini one wasn’t too bad. You don’t like it because you like the target. You need to find Matthew and give him a manly slap.

[Don Nico]

“But he wasn’t serious, he was ironic. ”
How do you know that SL? Twain could have been a sensation bottom.

[dwshelf]

Alito was W’s best nomination. Almost no chance Miers would have held a candle.

[JasonT20]

Alito was W’s best nomination.

Yep. No chance anyone would ever accuse Alito of being a RINO.

[Martinned]

Give it time

[Purple Martin]

“No chance anyone would ever accuse Alito of being a RINO.”

…as once said of Scalia before the right decided that any local government limits to bearing arms (re: Heller), and value of transparency and disclosure in financial support of political positions (re: Citizens United) were anathema to their sacred scriptures.

[JasonT20]

I’m not sure, but did my comment go over everyone’s heads?

We do not have Obama judges or Trump judges, Bush judges or Clinton judges … What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.

Chief Justice John Roberts wrote this after Trump had ranted against the ruling by an “Obama judge” against his administration in 2018. Obviously, naming the president that nominated a judge is a stand in for what party they would be expected to lean toward.

Despite the ideal that CJ Roberts reminded everyone that is supposed to exist of judges not being politicians in robes, few partisans actually seem to want this. That includes voters as well as elected leaders. My opinion is that evangelicals that desperately wanted a Republican nominee to replace Scalia were an essential component of the perfect storm that led to Trump’s 2016 victory. Had that seat on the Supreme Court not been open in November 2016, I don’t think that the Republican base would have turned out in high enough numbers in the key states for Trump to get an Electoral College victory. On the other side, there is no doubt that many Democratic Party voters also care a great deal about getting judges and justices that sympathize with their partisan goals nominated and confirmed.

Whether Alito is ever called a “RINO” or not, is there really anyone that thinks that he is nonpartisan? His fans seem to be glad that he isn’t.

[Brett Bellmore]

“Despite the ideal that CJ Roberts reminded everyone that is supposed to exist of judges not being politicians in robes, few partisans actually seem to want this.”

I mean, it would be great, if it were possible. Sort of like all the world’s governments getting rid of their nuclear weapons.

But every Democrat nominated Justice in my life, and most of my father’s life, for that matter, (It began under FDR.) has been a politician wearing a black robe. What partisans on the right aren’t interested in is unilateral disarmament.

Justices, (And judges, too!) becoming partisan warriors pursuing politics on the Court is one of those developments that there’s no turning back from, once it happens. It would be like asking one team in a game of tug of war to stop pulling, where what’s at stake isn’t just who ‘wins’ a silly game, but all the marbles in how our country is to be governed.

The Court has the power to decide political issues beyond the practical capacity for the voters to overturn, that’s a power once deployed, NOBODY will give up. Nobody dares give up.

[wreckinball]

A good exercise would be to list the political judgements and see what side the spectrum the judgement supports right or left?

I think there would be a lot more in the L column

[James Pollock]

I’m SURE that would be the case, if we left you in charge of the tabulation.

[JasonT20]

But every Democrat nominated Justice in my life, and most of my father’s life, for that matter, (It began under FDR.) has been a politician wearing a black robe. What partisans on the right aren’t interested in is unilateral disarmament.

This amounts to “They started it!” And if that is the thinking, then clearly, Republicans have decided, “And we’ll finish it!”

If it was really a matter of not wanting to “disarm” unilaterally, then you would expect to see behavior that matched what Democrats were doing. Your own partisanship would be showing through rather clearly if you really think that is what has occurred over the last few decades. Republicans still point to the confirmation hearings of Robert Bork as being unfair, but there was plenty of reason to doubt his suitability for the Supreme Court. And, in the end, 6 out of 46 Republican senators voted against his confirmation. (Total was 42-58) Even the grandstanding of Ted Kennedy during those hearings was nothing compared to the fiasco multiple Republicans engaged in during Judge Jackson’s hearing.

Even Sen. Grassley (88-year old Republican senator from Iowa running for reelection) had to admit as much during a town hall with constituents. A constituent called their behavior “appalling” and “The main thing they did this for was so they could get TV time.” Grassley paused and then replied, “I’m not going to dispute what you said, because I think that you described it accurately.” Ted Cruz was allegedly on his phone looking up to see if he was trending on social media after his turn, rather than watching and listening to the proceedings.

The Republican Party has become a party of “performance artists” (Texas Republican Ben Crenshaw’s words) just looking to whip up culture war issues to motivate the base.

It is sickening to see politics become so dysfunctional in this country. As others here have tried to point out to you, you can’t control Democrats that you would never vote for. You can try and argue and persuade their voters, but no Democrat politician is ever going to respond to your views any more than Mitt Romney would the supposed “47%” that would “never” vote for Republicans. It is the supporters of each party that are responsible for the quality of that party’s candidates and elected leaders.

[Brett Bellmore]

“The Republican Party has become a party of “performance artists” (Texas Republican Ben Crenshaw’s words) just looking to whip up culture war issues to motivate the base.”

I would not disagree.

The thing about the Republican party, at least at the federal level, is that it’s a bait and switch con. A scam. Mostly run by people who absolutely do NOT intend to ever deliver on most of their promises.

This wasn’t so obvious prior to ’94, because they were generally in no position to deliver on their promises; They could fight the good fight and lose, and nobody could tell they were taking a dive because they were going to lose anyway.

Once they were in the majority and contriving to lose anyway, it became kind of obvious.

Since ’94 the GOP has been embroiled in a civil war, with the voters and activists who actually do want the policies battling to tear the party loose from the entrenched establishment who are determined to cling to power, but never use it for anything but making sure the graft continues.

A ground roots effort starts up, starts to get traction, the establishment coopts it, then the activists drop it and start a new one. And with every cycle the activists get less choosy about how they pry the establishment loose, and the establishment makes less effort to pretend they care what the voters think.

The only reason the activists haven’t given up on the GOP entirely and created a replacement party is that the two major parties are seriously entrenched at this point, and that’s not a viable option anymore.

Which is, I think, a major cause of our political dysfunction these days: The major parties are no longer worried about being replaced if they don’t serve their constituents.

[Brett Bellmore]

It’s an interesting question how the GOP ended up this way, and why primarily at the federal level.

I tend to think the cause lies in that long period from ’32 to ’94 when the Democrats were almost always in control of Congress.

For 2-3 generations, you couldn’t tell if your Republican representative was playing to win, or taking a dive, because either way the result would be the same. So, no feedback to allow Republican voters to sort out the fakes.

But worse, the only way Republican members of Congress could accomplish ANYTHING during that period was to suck up to the Democrats. That became a cultural imperative within the federal Republican party; The only route to success lay in having good relations with the opposing party, something Democrats didn’t have to worry about.

So the GOP at the federal level became dominated and controlled by politicians who were comfortable cooperating with the Democrats, and who saw actively opposing them as political suicide. A kind of political Stockholm syndrome.

[James Pollock]

“It’s an interesting question how the GOP ended up this way, and why primarily at the federal level.

I tend to think the cause lies in that long period from ’32 to ’94 when the Democrats were almost always in control of Congress.”

I had a front-row seat at the collapse of the Republican party from the party of being the grown-up in the room to the party of being the pouty child threatening to hold his breath until he passes out because he can’t always have his way. When I was in high school, I lived in a state that that 2 Republican Senators and a Republican governor. That was the last time the R’s chose to nominate a candidate for governor that a majority of voters would, or could, vote for.

[David Nieporent]

So the GOP at the federal level became dominated and controlled by politicians who were comfortable cooperating with the Democrats, and who saw actively opposing them as political suicide. A kind of political Stockholm syndrome.

No, Brett. It’s called “being an adult.” Working with people from other parties is what politicians are supposed to do.

[JasonT20]

I disagree completely that the national GOP is significantly different than state and local parties. If anything, the states’ elected Republicans are more clearly off the rails and less interested in serving their voters. Florida is such a mess primarily because Republicans have had over 20 years of uninterrupted control of the state government. There is even only one Democrat-appointed justice left on the state supreme court, due to Florida having a mandatory retirement age of 70 for all state judges. There are no bigger examples of politicians in robes than the DeSantis appointees that replaced the last of Child’s. The new Chief Justice (which justice is chief is determined by an internal process with no transparency at all) had no experience as a judge prior to DeSantis picking him for the court. Instead, he’s spent a few years in private practice but mostly has had a career working in political roles that focused on political strategizing rather than litigation. (He worked for Betsy DeVos in Trump’s Education Department, Florida AG Pam Bondi, who he helped craft the PR defense of her taking $25,000 in political donations from Trump while her office was deciding whether to join other states in a suit against Trump University.)

The simple fact is that both national and state level Republicans have shown no desire to give the public confidence that judges are politically independent. Instead, they continue to show that they see those that they nominate as judges to be essential allies that should be loyal to their partisan priorities.

[JasonT20]

Actually, I am wrong. There are no Demcrat-appointed justices on the Florida Supreme Court. (At least, none by those elected governor as Democrats.) The one Florida Justice that isn’t a strong ideological conservative (Jorge Labarga), was appointed by Charlie Crist, who was still a Republican at the time. (He would switch to independent, and later to being a Democrat after a failed attempt to win the GOP nomination for the U.S. Senate. He was too much of a RINO for the modern GOP.) And at 69 years old, he won’t be on the Court for much longer. He’ll be replaced by whoever wins this year’s election for governor.

[James Pollock]

“The only reason the activists haven’t given up on the GOP entirely and created a replacement party is that the two major parties are seriously entrenched at this point, and that’s not a viable option anymore. ”

Bullshit. Complete and utter.

[Brett Bellmore]

No, I was a serious activist in the Libertarian party from 1977 through the late 1990’s, and I watched as one law and policy after another slammed the doors shut in our faces. Every time we found a way to start making progress, it got outlawed. Get invited to the debates? They create an official bipartisan debate commission to handle them, for instance.

[James Pollock]

Wait… policies closed doors on you?

[David Nieporent]

When exactly do you think the libertarian party was invited to a debate?

[David Nieporent]

Sigh. Once again Brett assumes that anything that doesn’t go his way is the result of bad faith and conspiracy. It wasn’t that the party had legitimate internal disagreements on issues, or even that they were incompetent, but that they were “taking a dive.”

[JasonT20]

This wasn’t so obvious prior to ’94, because they were generally in no position to deliver on their promises; They could fight the good fight and lose, and nobody could tell they were taking a dive because they were going to lose anyway.

Focusing only on how Democrats controlled one or both houses of Congress for most of that time ignores the 12 years of GOP control of the White House prior to the year you mention and the effect that had on the Supreme Court. (The topic at hand in this thread, by the way. Not to mention the power of the President to set agendas with the bully pulpit and the veto power.) And then, of course, they would take the White House back in 2000 for 8 years. Of the 32 years that I have been eligible to vote, Republicans have been in the White house for almost exactly half of that, and one Democrat was in the White house for four years out of my first 18 years. (I even voted for Republicans for President more times than Democrats prior to 2016.)

Your reply also addresses very little of what I said. You go off on your own tangent instead of responding to what I was saying about the relationship between the GOP and the Supreme Court.

[Sarcastr0]

Do you realize how much this sounds exactly like embittered Bernie Sanders supporters?

Because that exact logic – a pretextual party that actually supports the other side – is their worldview as well, but for the Democrats.

You can think the main party is bad without thinking they’re lying about their core philosophy.

[Real American]

to be fair, she doesn’t know what a woman is.

[James Pollock]

Let’s hear your definition.

[TwelveInchPianist]

Six, seven, she’s not a mathematician!

[Seamus]

Dammit, Jim, I’m a judge, not a _____________!

[TwelveInchPianist]

Kirk: Bones, I’m not seeing a lot of gender diversity on your team in sick bay. Maybe you need to include more women in you candidate pool.

Bones: Dammit, Jim, I’m a doctor, not a biologist!

[Davy C]

I mean, Nurse Chapel was eventually promoted to doctor. How many doctors would a ship the size of the original Enterprise even have?

[Brett Bellmore]

I’d assume at least three, to provide functional redundancy, even if it was too many for normal conditions. That was a ship intended to spend months at a time beyond the borders of civilization.

[James Pollock]

There were four presented on screen, mostly before DeForest Kelley joined the main cast.
In the final episode of the original series, they said that no woman had ever been placed in charge of a Starfleet vessel.

[TW]

During the original five-year mission, the Enterprise had at least three physicians – McCoy, M’Benga and Sanchez plus a psychiatrist (Helen Noel).

[Sarcastr0]

Dr. Phil Boyce erasure.

[James Pollock]

”

Kirk: Bones, I’m not seeing a lot of gender diversity on your team in sick bay. Maybe you need to include more women in you candidate pool.

Bones: Dammit, Jim, I’m a doctor, not a biologist!
”

More accurately: Dammit, Jim, you hit on anything even remotely feminine! Get the hell out of my sick bay, and go find some alien women to chase after.

[JasonT20]

Josh, if Mitch McConnell can ignore a Supreme Court nominee, why can’t Judge Jackson?

[zztop8970]

Because we expect more from SCOTUS justices than from partisan politicians? Just a thought.

[Purple Martin]

Ah, the irony in light of The Ballad of Clarence and Ginni.

[zztop8970]

Have a read: https://en.wikipedia.org/wiki/Whataboutism.
And last I looked Clarence and Ginni were different people.

[Life of Brian]

And last I looked Clarence and Ginni were different people.

They’re married, ya know. That means all thoughts, actions, and perspectives of one should be attributed to the other, right?

It’s got all the logic of a child refusing to eat her meat because it’s touching her potatoes which is touching her lima beans.

[NOVA Lawyer]

You misunderstand the issue, Life of Brian. It’s not because anyone assumes Justice Thomas has idiotic political views relating to the 2020 election, it’s because his wife’s texts and emails may be among those being sought by the House.

You think it is okay for a judge to preside over a civil action where his wife is an interested party? Seriously?

And, yes, the texts we’ve seen from Ginni were obtained apart from the subpoena in the case in which Thomas participated, but there is reason to believe the subpoena may have reached more of her texts or emails or other correspondence. At the very least, there is the appearance of impropriety in participating in a case where your vote might protect your wife from further embarrassment.

Whether Justice Thomas is as batshit crazy as his wife, that’s a separate (if no less concerning) issue.

[zztop8970]

If and when his wife’s texts and e-mails are requested, he should recuse, even though other justices in similar situations did not (see for example RBG on matters related to her family).

But that’s not what’s being debated here – here, a poster sees something wrong with Clarence Thomas being married to Ginni – suggesting that because his wife is (an extreme) political operative, he, by defintion, must be assumed to be the same.

[James Pollock]

I’m 100% sure that Justice Thomas does NOT let the political sleaze get on his robe, and would never dream of ruling in a blatantly partisan way. Which is why the Republicans wanted him to be a Justice in the first place, they HATE partisan games with the Court. Which I know because they keep saying so.

[JasonT20]

Because we expect more from SCOTUS justices than from partisan politicians? Just a thought.

It seems that my attempt at satire or sarcasm was not recognized as such again. The nominations of Harriet Myers and Merrick Garland are not really analogous in any way. Harriet Myers’s nomination was withdrawn a few weeks after it was announced. Both the left and right had been critical of her as a pick, as it seemed to be based more on the history she shared with George W. Bush, than on qualifications. (She had little to none of the kind of intellectual background or experience typical of SCOTUS nominees.) And while she was clearly conservative in her leanings, she was not the staunch ideological conservative that those activists and politicians wanted to see Bush put on the Court. (Alito would be her replacement nominee for Sandra Day O’Connor’s seat.)

As others have noted, that her nomination fizzled under bipartisan criticism before it got to hearings is reason enough to make it forgettable. But Merrick Garland had been praised by Sen. Orrin Hatch in 2010 as an excellent ‘consensus’ pick that Obama could make for the seat likely to come up at that time, a person that Hatch said he would support and work to help confirm. The controversy over Senate Republicans’ blockade of any Obama nominee to replace the recently deceased Scalia is not at all forgettable.

[zztop8970]

For satire to work, the things being satirized via analogy need to be similar in some meaningful way that is relevant to the context. That’s one of the reasons your attempt failed.

[James Pollock]

Oh, it worked, you just didn’t like that it worked.

[zztop8970]

Try to pay attention: even the OP concedes it didn’t work.

[JasonT20]

Fine. It didn’t work. (At least, the people I hoped would get it didn’t.) Any comment on the substantive criticism of the situation that isn’t an attempt to use satire or sarcasm?

[zztop8970]

Which situation? The KBJ one? She made careless comment, but it’s no big deal. The nominations of Harriet Myers and Merrick Garland are not really analogous in any way, I agree.

[James Pollock]

“Try to pay attention: even the OP concedes it didn’t work.”

No, YOU pay attention. I said it did.

[zztop8970]

You’re not the the OP. Read his comment, right above yours.

[Rev. Arthur L. Kirkland]

If Prof. Blackman spent a fraction of the time he devotes to correcting others on editing Today In Supreme Court History, that feature wouldn’t be such an embarrassment to white, male, right-wing blogs and to a couple of law schools (one strong, the other shambling).

[DaivdBehar]

Hi, Artie. Still waiting. Stop talking until you resign and interview your diverse replacement. It better be diverse enough.

[Cheerio]

The majority of bloggers on this site are are highly/widely respected scholars. (Admittedly not all, but most, and notably the proprietor.)

And of course, their demographics are irrelevant to the vast majority of people.

But do carry on…as you like to say.

[Rev. Arthur L. Kirkland]

Their demographics seem to be quite important to the while male(s) selecting the white, male contributors to this blog.

[Cheerio]

If you’d like to allege actual discrimination, please provide evidence.

If instead you’re merely suggesting that they should be more proactive in pursuing diversity, please clarify that.

[Rev. Arthur L. Kirkland]

Without rigorous inquiry into this odds-defying circumstance, it seems difficult to figure this is anything other than a three-sided coin flip among calculated discrimination, unconscious discrimination, and something else.

I expect clingers to see it differently, of course . . . maybe even make it the fault of women and blacks that this is such a white, male blog.

[Intelligent Mr Toad]

OFF-TOPIC:

The two greatest zombie-and-medical-science/biotech movies of 1985, which are Day of the Dead (George A. Romero) and Re-animator (Brian Yuzna), both feature moments in which someone uses a shovel to decapitate someone else, and, both feature moments in which a zombie bites off two fingers from a living person, with a single bite, shot from the living person’s point of view. Both are pessimistic stories, in which a scientific advancement or plan appears impressive in “proof-of-principle” experiments, but fails in actual attempts to use them for practical application.

(HIV/AIDS reached full-national-crisis-level in the mid 1980s.)

[arch1]

Yup, that was off-topic alright.

[Cal Cetín]

While it’s a bit jarring to find Prof. Blackmun berating *others* for errors in Supreme-Court-related matters, still, Judge Jackson ought to avoid *any* estimate of how many women were nominated.

How would she know?

While it’s fair that she avoid committing herself in a live legal controversy – and absurdly enough, the definition of a woman is such a controversy – her comment on not being a biologist was a bit much. And in any case she should reserve judgment on how many Justices were women. How could you tell, under their robes?

[DaivdBehar]

It’s not what’s under their robes. It’s what’s in their minds. More mind reading by the lawyer.

[James Pollock]

In today’s lesson, we learn that information you can get from someone by asking them a question is not mind-reading.

[Lee Moore]

While it’s fair that she avoid committing herself in a live legal controversy – and absurdly enough, the definition of a woman is such a controversy – her comment on not being a biologist was a bit much.

In fact, she tried to dodge the question but accidentally walked right into it, chin first. To the extent that the meaning of “woman” is a live legal controversy, denying that you know because you are “not a biologist”, clearly places the answer in the realm of biology. Not culture, not subjective identification. It clearly asserts that the question concerns sex not gender.

All of this is a superdoubleplus thoughtcrime.

In trying to avoid giving an answer, while signalling to the woke that she is one of theirs, she has in fact let out a deafening shout that she is not woke at all, but as fast asleep as Judge Alito. Who would certainly agree that what maketh woman is a biological question. Though I doubt he would have struggled with telling us what answer biology provides.

[SimonP]

She didn’t “walk right into the question.” It was a trap no matter how she answered.

Blackburn’s question was juvenile and idiotic, with no clear answer even according to Republican orthodoxy. What is a “woman?” How would you answer the question?

If Jackson had somehow formulated the “correct” response, per Republican orthodoxy, you lot would be claiming she was lying about her true beliefs, and attacking her for that. Any other response than the “correct” one would, by the same token, give you fodder for your pre-determined narrative. That being the case, “I’m not a biologist” is the best answer, because it deprives you of an easy “woke” narrative and prevents you from accusing her of lying.

Here’s the truth of the matter: “woman” is a gender construct. The way we usually think of women, we think of it as being tied in an essential way to biology – i.e., genetic and anatomical features. But in our everyday lives we don’t usually refer back to these biological features when determining whether someone we’re presented with is a “woman.” We don’t run a genetic text or check out their hoo-hah. We refer, rather, to aspects of their appearance, the way they conduct themselves, the way they present themselves. And a lot of that is culturally contingent and can be voluntarily assumed (or rejected). “Women” in our culture wear certain clothing, wear their hair in certain ways, accentuate some parts of their body, even walk a certain way.

But that needn’t be the case; and indeed, even people with the biological features we commonly associate with being a “man” can assume many of those same behaviors, which raises the question: how do we treat such people? Do we treat them as “men” because their hoo-hah is actually a ding-a-ling, regardless of everything else? Or do we treat them as they want to be treated?

The answer is not that difficult for anyone with a developed moral sense. The only people who object to the obviously correct answer are people still hung-up on what they learned in kindergarten about boys and girls: “boys have ding-a-lings, and girls have hoo-hahs.”

[Brett Bellmore]

“How would you answer the question?”

“An adult human with both X AND Y chromosomes.” “Woman” is generally not used for children, “girl” is, and the term is reserved for humans.

“Here’s the truth of the matter: “woman” is a gender construct. ”

Here’s the truth of the matter: That’s a lie the left is attempting to bully people into accepting, to break down their resistance to going along with any other lies the left wants to use. If the left can take total control of our language, they can, as Orwell warned, make it impossible as a practical matter to express disagreement with them.

[James Pollock]

You also are not a biologist if you think that a “woman” has both X and Y chromosomes. Most women are born with two X chromosomes. It’s the menfolk what have an X and a Y. There are some individuals born with two X’s AND a Y.

[bernard11]

Aside from your chromosome blunder, how would you define “adult?” Past puberty? Old enough to drive (16, usually)? To vote (18)? To drink (21, usually)? To marry (18, but varies)?

[Lee Moore]

A definition does not need to be precise to me accurate. There is a degree of imprecision in the expression “a large dog” – how large is large – and yet the expression is plenty precise enough to cover most cases. Most dogs that I categorise as ‘large” will be so categorised by most other observers. Ditto “small” dogs. Perhaps 25% of dogs will fall into a grey zone, wher eopinions differ as to whether it is large enough to count as “large.”

Ditto “adult” – as you suggest, sometimes people may mean “over 21”, other times they may mean “post puberty.” But a five year old human will never be categorised as “adult” and a twenty five yea rold will never be categorised as not “adult.”

You do not refute a defintion merely by mentioning that it is imprecise.

[NOVA Lawyer]

You make the point: Asking a Supreme Court Justice to define “large dog” is a stupid exercise. There is no correct answer as the answer is entirely context dependent.

Same goes for asking a Supreme Court nominee to define a woman.

[Lee Moore]

Au contraire.

“Adult human female” is a perfectly straightforward, easy, non-controversial answer.

If the Senator had followed up demanding a definition of “adult” then that would be the moment to start quibbling about 17 year olds and 19 year olds. Which any listener would have regarded as perfectly reasonable.

[James Pollock]

“A definition does not need to be precise to me accurate.”

To be accurate, a defintion of X needs to capture all cases of X and at the same time, not include any cases of not-X. That usually requires some precision.

[Brett Bellmore]

Expect stupid mistakes like that to keep increasing, I’m in my 60’s, and a bad family history in that regard.

God, is that ever depressing to think about.

[Lee Moore]

You’re obviously a glass half empty merchant.

The correct way to think about it is – I’m in my sixties and I’m still going !

[SimonP]

Brett – when you meet a person on the street and infer their gender, does any part of your evaluation depend upon knowing what their chromosomes are?

[Brett Bellmore]

It depends on inferring what their chromosomes are.

[James Pollock]

Either way, why is it any of your business?

[Lee Moore]

Simon P : How would you answer the question?

“Adult female human.”

As bernard mentions below, there is a degree of imprecision about “adult” – because “adult” is not semantically precise. There are arguable border areas.

“Female” meanwhile is very semantically precise, though not perfectly so, as there are very small border areas here too.

“Female” refers to a creature which has egg production equipment. At any stage of the life cycle – ie egg production equipment which is still itself under production qualifies you, ditto egg production equipment which is no long functional, and indeed egg production equipment that, owing to some fault, has never been and never will be functional. “Male” refers, similarly, to a creature which has sperm production equipment. Some creatures can have both sets of equipment at the same time – they are both female and male, traditionally called hermaphrodite. And some creatures are sequential hermaphrodites – ie they have the gamete making equipment of one sex, and then later in the lifecycle, they have the other set.

The very small degree of imprecision – which en passant I will mention applies to approximately 0% of “transgender” folk, because it is very rare indeed – is if you you are unfortunate enough never to have gonadal material at all, or if your gonadal material is not identifiably of one sex or the other. Then you are neither male nor female. You are not intermediate – there are no intermediate stops between male and female. You just don’t have a sex.

But some people – very few – have neither male not female gonads, but do have gonadal material, eg streak gonads that is identifiably testicular in nature or ovarian, or even intermediate. In such case, an argument could be made for regarding this material as if it were a non functional gonad of one sex or other. And an argument could be made against. Hence the very small area of imprecision in the word “female.”

But these cases are very rare indeed. At least 99.99% of people have unambiguous gonads, and this includes transgender folk too. V

It should be noted that while your external phenotype – your habitus – may for various reasons realting to faulty developmental be atypical of the normal external phenotype for your sex, it has nothing to do with what sex you actually are. That is entirely a matter of your gamete factories.

“Human” is very semantically precise. These days. No doubt there was a time a few hundred thouand years back, when there was a degree of imprecision in the expression.

You’re welcome.

[SimonP]

“Female” refers to a creature which has egg production equipment.

So a woman who has had her ovaries removed is no longer a man or a woman; ditto for a man who has had his testes removed.

I do not know why I bother writing full comments here, because so few of you can be arsed to fucking read them. I have already acknowledged that most people assume that “man” and “woman” are biologically essentialist categories, so they can produce these kind of facile “definitions” that fail to capture how we actually use the terms.

My point, in response, was that – this is not how you actually determine whether a random stranger, or co-worker, or potential mate, is a “man” or “woman.” I have no particular problem coming to an initial assessment as to whether a person is a “man” or “woman,” and this assessment in no meaningful way depends on me knowing or inquiring as to their reproductive organs. At the same time, when I do have a problem evaluating a person’s gender – because they are androgynous, say – I do not validly draw any inference about that person’s reproductive organs. I do not assume, in other words, that a butch woman is possibly a hermaphrodite, and neither do you.

Your definition, simply put, is incorrect.

[Lee Moore]

moi : “Female” refers to a creature which has egg production equipment. At any stage of the life cycle – ie egg production equipment which is still itself under production qualifies you, ditto egg production equipment which is no long functional, and indeed egg production equipment that, owing to some fault, has never been and never will be functional.

Simon P : So a woman who has had her ovaries removed is no longer a man or a woman; ditto for a man who has had his testes removed.

So, no. The human is female if its ovaries are no longer functional, whether they remain attached or not.

Simon P : I do not know why I bother writing full comments here, because so few of you can be arsed to fucking read them.

Do you want me to define either a “glass house” or a “stone” ?

[James Pollock]

“Stone” The contents of your head.

[James Pollock]

“As bernard mentions below, there is a degree of imprecision about “adult” – because “adult” is not semantically precise. There are arguable border areas. ”

Adult means “able to create viable offspring”, except to lawyers. For their convenience, we declare adulthood to arbitrarily start after a predetermined interval after birth.

“adult female” in humans is readily determined by onset of menstruation.

[Lee Moore]

Here’s the truth of the matter: “woman” is a gender construct. The way we usually think of women, we think of it as being tied in an essential way to biology – i.e., genetic and anatomical features. But in our everyday lives we don’t usually refer back to these biological features when determining whether someone we’re presented with is a “woman.” We don’t run a genetic text or check out their hoo-hah. We refer, rather, to aspects of their appearance, the way they conduct themselves, the way they present themselves.

I think this gets to the nub of your misunderstanding.

I will select for my illustration the British preparations for the Second battle of El Alamein. The desert in Libya / Egypt is bounded by the coast to the North, but unbounded to the South. Except in the area of El Alamein the South is bounded – by the Qattara Depression. Meaning that the defending side isn’t going to get outflanked. The attackers have to blast through the line. Somewhere.

The British had to decide – do we attack in the North or do we attack in the South ? They decided on the North. So the next question was – how do we fool Rommel into thinking we’re going to attack in the South ? And the answer was – a large deception plan.

Part of which involved disguising tanks as trucks. And trucks as tanks. Disguising from reconnaissance aircraft I mean. They actually used their own reconnaissance aircraft to check how good the disguise was from the air. And the deception worked pretty well. The Germans were fooled, and there was an element of surprise achieved.

Now the question is – when German aircraft flew over taking photographs, and their intelligence people decided – that looks like a truck park to me, or further to the south – that looks ike a division of tanks to me; does it make sense to say that the German opinion was as good as the British opinion ? Once a British tank is disguised as a truck, can it really be said to be a truck, and not a tank ?

Well the Germans didn’t think so. They accepted that when the “truck park” start advancing and firing on them, the trucks were in fact tanks, and they had been fooled.

And that is the answer to your puzzle. Of course when we lack information, we may well take a dude dressed up like a gal, as a gal. But if and when we discover that the gal actually has a wick and testicles under “her” skirt, we do not conclude that the skirt is definitive.

A tank disguised as a truck is……a tank. Even if we were fooled by its trucky appearance from a distance.

PS – I do not mean to say that even if we discover that the “gal” in a dress is really a dude, we might not choose to go along with it, out of politeness; or as Josh regularly insists, to assist the dude medically. That’s a different question. But the dude is in fact a dude, just as the tanks were tanks.

[SimonP]

So you believe that, when we refer to “men” and “women,” we are referring principally to their reproductive organs. We may draw initial inferences about what a person’s reproductive organs are, based on how they present themselves, but these inferences may easily be mistaken. The essence of “manhood” is a dick, and the essence of “womanhood” is a vagina.

Is that right?

[Lee Moore]

Not quite. It’s testes and ovaries, not dicks and vaginas. But otherwise you have it right.

It’s not karotype either. Genotype – in mammals – is highly predictive of sex, and therefore a good proxy to identify sex, but sex is a phenotypical characteristic. It does not matter how you acquire your testes or ovaries, what matters is which ones you’ve got. That is entirely dispositive of the question of your sex. Human or something else.

Should you wonder why gonads are completely dispositive, the answer is that sex as a category is fundamentally a characteristic of gametes (and that which makes a gamete is called a gonad.) And in particular, gametes are only sexed in anisogamous organisms. Neither isogamous organisms, nor their gametes, have sexes. Sex as a category is entirely a characteristic of anisogamy.

It is of course also true that there are behavioral characteristics that are sexually differentiated, ie more typical of men, or of women, but which are not displayed digitally. Thus a woman can in some respects sometimes behave in a typically “male” fashion, and vice versa. But behaving in a manly fashion does not make you a man. Likewise, as the Duke of Wellington mentioned, being born in a stable does not make you a horse.

[SimonP]

All your position boils down to, then, is that gender is sex. But, as I’ve illustrated, this is not generally how we think of gender. You’re begging the question.

[Lee Moore]

Simon P : All your position boils down to, then, is that gender is sex. But, as I’ve illustrated, this is not generally how we think of gender.

Not at all.

1. First, “woman” is a reference to sex, not to gender. It is true that a small minority attempt to use it as a reference to gender, but usually – as with Judge Jackson in this case – they are unable to do it consistently. As I noted she tied herself in knots by pretending not to be able to define the word – a nod to its very flexible use as a reference to gender – and then going on to explain that her inability derived from a lack of expertise in biology – a reference to sex.

2. I don’t deny that it may be possible to use “woman” as a reference to gender, merely that such a usage turns out to be easier said than done, and that the usage is very much a minority usage, and a very recent usage too. Moreover it is very confusing for this minority to use, for this new concept, a word that already has a clear meaning. All they are doing is sowing confusion. (Deliberately, IMHO.) So it is quite reasonable to assume that “woman” is a reference to sex rather than to gender. And Judge Jackson so assumed.

3. This applies a fortiori to “female” since unlike “woman”, “female” is not restricted to the human species, and no one even pretends to have a non human concept of gender.

4. One of the difficulties with a usage of “woman” as a reference to gender is that “gender” is very rarely defined in any consistent sense, for two sentences in a row. The problem is usually – when someone at least makes a semi-serious attempt – is that it rapidly becomes a self-referential, and thus meaningless definition. Thus for example “gender is the subjective sense / feeling of whether you are male or female (or something else.)” Which rapidly collapses into “a woman is someone who thinks/believes/feels she is a woman.” We are no wiser than we would be with “a burpydoo is someone who thinks he is a burpydoo.”

5. Now, I should be clear that i think it is perfectly possible that some people’s brains are so wired that they have “gender dysphoria” that is to say they perceive a mismatch between their evident phenotype and some inner sense of what sex they really are. Note we have to say “sex” here, not gender, to avoid self reference. So there may well be a real mental sense of gender – ie feeling of which sex team you’re on – that is perceptible to those with dysphoria, but not perceptible to those of us who have no sense of mental unease about our body’s sense of its proper sex team.

6. So I wouldn’t say that gender has no reality in the brain – it may well have – merely that it is not what most people are referring to when they use the word “woman” or “female” – and that those who claim that they do use those words to refer to gender have, so far, done a very poor job in explaining coherently what it is they are referring to.

7. So, I’m not begging the question of what a “woman” is, I’m describing the ordinary usage of the word as a reference to an adult human female, and for those whose biology is limited, how you identify a female of any species. I accept for the sake of argument that some people might try to use that word in a different sense, related to internal feelings about one’s sex, but my suggestion is that they should (a) pick a different word to use, since they are merely causing confusion by picking a word that already has a nice clear meaning accepted by the vast bulk of the English language community for several hundred years and (b) work hard at defining what they mean by “xuvery” or whatever they pick, in a coherent, non circular, fashion.

[Lee Moore]

Simon P : woman” is a gender construct

I forgot to mention, of course that Judge Jackson disagrees with you. She ascribes her inability to answer the question to her lack of expertise in biology.

[James Pollock]

“The actual situation is that individual judges who do not answer to the general public are flagrantly flaunting sentencing ranges put in place via the legislature that does so answer.”

You’re assuming that “trucks” and “tanks” are completely separate and do not overlap, which is stupid, because there are half-tracks. While you’re out dividing up the universe into “trucks” or “tanks” (and assuming that your assessment is dispositive), the real world doesn’t care.

If that dude over there believes that he’s actually a woman born into a man’s body, and you insist on telling her she’s wrong because (duh) man’s body, you’re buying into the story. Telling her that you know her better than she does about the nature of her person solves approximately nothing.

The vast majority of people are born with two sex chromosomes in every cell of their body… Either two X chromosomes or one X and one Y. Those is not the only two possibilities however.

[Longtobefree]

Oh, yeah, eminently qualified.
Failing an open book quiz is always embarrassing.

And yet, pure politics will put this human on the court for life, destroying the lives of men and ‘those other things’ for decades.

On the plus side, she has inadvertently boosted the economy:
https://thefederalist.com/2022/03/30/sign-of-the-times-blackburn-sells-define-a-woman-shirts-amid-media-attack/

[Alpheus W Drinkwater]

This is the level Republican Party discourse has reached. Depressing.

[Longtobefree]

Just for the record; I have no connection to the Republican party. (nor the democrat party) (nor the “Libertarian” party)

[James Pollock]

NONE of them will have you? Embarrassing.

[Rev. Arthur L. Kirkland]

What should we expect from a disaffected, delusional collection of half-educated racists, superstitious gay-bashers, antisocial gun nuts, disaffected immigrant-haters, rural malcontents, obsolete wingnuts, and bitter clingers?

[Moderation4ever]

With the exception of Robert Bork people remember few if any unsuccessful candidates for the court. I believe that President Nixon had two candidates who did not make the cut, but I could not tell you their names off the top of my head. I was young when they were turned down.

Like most things, American like winners and loser are quickly forgotten.

[CJColucci]

Clement Haynesworth and G. Harold Carswell, both of whom, unlike Miers, went through the Committee process and lost on floor votes. Someome who never even got out of the Committee, and withdrew her name from consideration 24 days after she was nominated, is easy to forget.

[Krayt]

The hubbub made by columnists mocking it as payback to a friend, a lousy reason, makes it hard to forget.

[bernard11]

Wow.

Pretty strong hatred coming out here.

Guess that’s what Josh’s cheap shot was intended to produce.

[DaivdBehar]

Jackson is filled with hate too. What she hates most is America.

[MDJ23]

Oh good grief. KBJ spoke effusively about how much she loves this country. Her parents spent their careers working for public schools. And she’s been in public service for 22 years. It is pretty clear that you’re the one who hates America.

[Bill Falcon]

so a privileged person with public sector parents…not really the person I want to make decisions on when federal law is in violation of the Constitution or Bill or Rights. She is just a mediocre “blue blood” Ivy League type like Bush (not very smart but checks all the boxes as she is the right sex/race). Come on corn pop…

[Lee Moore]

If you’re going to use up “strong hatred” on a bit of poking of fun at her silly answer, what have you got left for something a little more severe ? Like a few rape allegations. You’re running the risk of being thought to be exaggerating.

[Sarcastr0]

For poking fun, no one seems to be having a good time.

[Rev. Arthur L. Kirkland]

This blog reflects what disaffected wingnuts consider a good time, Sarcastr0.

Have you ever considered what conservatives consume as entertainment (while rejecting our best musicians, movies, comedians, television shows, etc.)? How depressing must it be to choose among the Left Behind series, drawl-and-twang music, Gutfeld!, NASCAR, rattlesnake juggling, ‘rasslin, the 700 Club, Klan recruitment rallies, Amway parties, and Blue Bloods.

[StellaLink_the dog]

Hey!

You left out “Heavy Rescue: 401” and “Highway Through Hell.”

[Rev. Arthur L. Kirkland]

That occurred because I am not familiar with those two.

[wreckinball]

She thinks adults poking minors is harmless fun so ??

[James Pollock]

So do a number of state legislatures, who set their state’s age of consent lower than 18, and/or set marriage age to less than 18.

[David Nieporent]

Why are you lying? Is it poor character on your part?

[StellaLink_the dog]

Libertarians are the ones advocating for the legality of adults having sex with children. Jackson is not a Libertarian.

[James Pollock]

When you loosely define “children” to include a substantial number of sexually-active adults, you can get that result.

[bernard11]

Lee,

Take it in context. Sure, in isolation it’s poking fun, but given how much crap has been thrown at Jackson by RW assholes I’d say there is lots of hatred.

Besides, what’s the big deal here? I mean, Roberts told us that simple arithmetic is “sociological gobbledygook,” so what does it matter if she miscounted?

[Lee Moore]

1. Certainly a handful or two of crap has been thrown at Jackson by right wing persons, some of who are no doubt assholes. But pretty small amounts by the standards of recent Republican nominees and the correponding left wing persons, inc assholes. Take it in context.

2. The specific crap in Jackson’s case, prior to the “woman” thing, involved her record in child porn cases, which seemed to be on the, er, liberal side, of which certain RW persons, inc assholes, disapproved. No doubt an R nominee with a similarly lenient approach to sentencing, say, rapists and sexual offenders would have been on the receiving end of a fair amount of crap too. It’s a legitimate area of challenge.

3. But the particular crap being tossed here (in the comments) is not amount child porn, or her arithmetic, but about her claimed inability to identify “women.” Despite simultaneously being able to identify that she was the nth such to be nominated. Which is an entirely worthy subject, not for hatred, but for ridicule. Bill Clinton, a true expert at dodging a straight question, would never had made such a rookie mistake. Which – as I note above – was not only an inartful fib, but a self own.

4. But as you say, what’s the big deal here ? Some folk want to poke fun, some people think the fun is funny. Some don’t. But political opponents having a pop at “enemy” judges being parked on the Supreme Court is hardly a big deal, and certainly not hatred. It’s par for the course, and the Jackson crap is very mild indeed compared to the Kavanaugh crap.

One should, IMHO, try to avoid hyperbole in mild cases, for fear of running out of suitable epithets for more serious cases. Save the cry of “Wolf !” for actual wolves, don’t use it up on dachshunds.

[bernard11]

her record in child porn cases, which seemed to be on the, er, liberal side, of which certain RW persons, inc assholes, disapproved.

My impression is her record is right in line with other judges, and the guidelines issue is BS, since they are widely regarded as too severe for possession of child porn.

Of course, the asshole caucus is free to introduce legislation making the guidelines mandatory, but guess what, they haven’t done that, and they didn’t do it when the R’s had a Senate majority. So you know what – they really are full of shit.

[Life of Brian]

since they are widely regarded as too severe for possession of child porn

Widely regarded as too severe by parents who prefer for their children not to be sexually exploited in the creation of such material? Or some other group?

[bernard11]

Oh fuck off.

You know what I mean – other federal judges, and apparently some prosecutors.

By your logic anything less than a death sentence could be construed as too lenient, so long as you could find a parent somewhere who favored that.

[Life of Brian]

By your logic anything less than a death sentence could be construed as too lenient, so long as you could find a parent somewhere who favored that.

It is truly bizarre to me how the defenders of child porn traffickers try to flip the script on its head.

The actual situation is that individual judges who do not answer to the general public are flagrantly flaunting sentencing ranges put in place via the legislature that does so answer.

If things are really that dire and so clearcut that the vast majority of the populace believes the poor little child pornographers in their midst are being treated too harshly, certainly Congress has had plenty of opportunities to ratchet down the guidelines and get them some relief.

That it has not done so clearly speaks the lie to your “a parent somewhere” nonsense.

[bernard11]

You are an idiot.

No one is defending child porn traffickers.

No one is handing out illegal sentences. The guidelines are not mandatory, you jackass.

What is going on is that Hawley, et al grossly distorted Jackson’s record to rile up the rubes and idiots, and you fell for it.

In 2018 61.2% of all child pornography offenders received below-range sentences, with an average variance of 40.1%. Cite.

[James Pollock]

The law on child pornography is overbroad. The alleged purpose of criminalizing possession of child porn is that there is no way to create it without victimizing children. And THAT’S why we criminalize creating child porn by creating 3D models or typing words on a computer screen.

[damikesc]

What cases she gave lenient sentences to did that?

[James Pollock]

“The actual situation is that individual judges who do not answer to the general public are flagrantly flaunting sentencing ranges put in place via the legislature that does so answer.”

If the sentencing rules are too lenient, those legislators should tighten them up.

[David Nieporent]

The actual situation is that individual judges who do not answer to the general public are flagrantly flaunting sentencing ranges put in place via the legislature that does so answer.

No, you dishonest prick. Setting aside that you meant flouting rather than flaunting, the sentencing guidelines are put in place by the sentencing commission, not the legislature. And of course they are just suggestions, so one cannot flout them.

certainly Congress has had plenty of opportunities to ratchet down the guidelines and get them some relief.

All sentences issued by KBJ and other federal judges on these subjects (and all others) match the sentencing range set by Congress. If Congress wanted these people to be sentenced longer, Congress had plenty of opportunities to require longer sentences. It did not.

[Brett Bellmore]

As I understand it, all her sentences WERE within the guidelines, just always at the bottom end. I guess you could call that “flaunting” them. You’d have to actually violate them to “flout” them.

[Sarcastr0]

dire and so clearcut

Got any proof of you partisan asshole or just gonna use intensifiers until someone believe you?

Watching the GOP inch towards QAnon Dems are pedophiles bullshit is not a lot of fun.

[Leo Marvin]

“It is truly bizarre to me how the defenders of child porn traffickers try to flip the script on its head.”

Tell it to rabid-leftist-defender-of-child-porn-traffickers Andrew McCarthy.

[David Nieporent]

This discussion has nothing to do with the creation of such material.

[Rev. Arthur L. Kirkland]

” No doubt an R nominee with a similarly lenient approach to sentencing, say, rapists and sexual offenders would have been on the receiving end of a fair amount of crap too. ”

Several reports assessing other nominations indicate you are a combination of uninformed and lying in this respect.

[Don Nico]

“don’t use it up on dachshunds.”
Hey, what is that dissing of dachshunds.
It is well known that they are fiercer than rottweilers

[James Pollock]

Little yappy dogs are the worst.

[wreckinball]

Did they bring in someone who can’t remember anything but knows Jackson sexually assaulted them?
Did they investigate her High School yearbook?

Slackers!

[James Pollock]

They would have, if they could have found one.

[damikesc]

They didn’t find anybody who Kavanaugh did anything to, for what it is worth.

[James Pollock]

So you know where the actual victims were hidden away, is how you know they didn’t find them?

[James Pollock]

“3. But the particular crap being tossed here (in the comments) is not amount child porn, or her arithmetic, but about her claimed inability to identify “women.””

No, the complaint was that she declined to provide a definition.

[zztop8970]

I you want to play the ‘whataboutism’ game, you should at least try to get your facts right. Roberts didn’t say ‘simple arithmetic’ is “sociological gobbledygook’ he described a specific attempt to apply models to sociological data as gobbledygook. And Breyer said pretty much the same thing,

[bernard11]

It wasn’t “sociological data.” It was straightforward election results.

Look, I understand. Roberts is, above all, a Republican. He’s an establishment Republican, not a Trumpist, but a Republican nonetheless. When he can, without being totally embarrassed, he will vote for the Republican side in a case.

[JasonT20]

Of the current Supreme Court Justices, only Amy Coney Barrett had a career completely outside government service prior to become a judge. Sonia Sotomayor worked as an ADA prosecutor, then in private practice, before being nominated by George H.W. Bush to the District Court level in 1991. Neil Gorsuch was briefly the Principal Deputy Associate Attorney General at the U.S. Department of Justice in 2005-2006 after 10 years in private practice before being nominated to the appellate bench by George W. Bush. All of the others held some kind of politically appointed position for a significant length of time prior to their first nomination to the federal judiciary.

Ketanji Brown Jackson service in government prior to joining the federal bench consisted of being an assistant special counsel to the United States Sentencing Commission from 2003-2005, then was confirmed by unanimous voice vote of the Senate as vice chair of that commission in 2010 until 2014.

The truth is that most Supreme Court justices had fairly clear partisan political records prior to their nominations. If there is a clear path to getting on to the federal bench without having picked a side first, it doesn’t lead to the SCOTUS very often, it seems.

[Lee Moore]

It wasn’t “sociological data.” It was straightforward election results.

No it wasn’t. It was the “efficiency gap”, proposed as an arithmetical model of gerrymandering. The arithmetic itself is simple, what is tendentious is the faux-scientific argument that the arithmetic is in a measure of gerrymandering*. Nor is it even a plausible measure of disproportionate repreentation* – a simple meaure of persons elected per voter does that for you.

So it is a concocted calculation divorced from easy interpretation designed to give a veneer of “scientific” respectability to the traditional Democrat complaint that the battlefield is not fair to Democrats. That, rather than the arithmetic, is the sociological gobbledygook.

* members elected out of proportion to the number of voters voting for their party is not, per se, either unfair, or evidence of gerrymandering. There are plenty of factors aside from gerrymandering that can contribute, most obviously the geographical distribution of voters of different parties, and the degree of mixing within the same area.

[Lee Moore]

Naturally I feel a bit sheepish about giving the impresion of riding to the defense of Roberts, but in reality i’m riding to the defense of common sense. A much worthier recipient of assitance.

[James Pollock]

Partisans are fine with gerrymandering when it’s their guys doing it, and positively incensed by it when it isn’t.

[Brett Bellmore]

Indeed, it’s easily proven that the ‘efficiency gap’ has nothing to do with gerrymandering, used by itself: It makes no reference to the shapes of districts, and gerrymandering is DEFINED in terms of the shapes of districts.

You could literally create a district map consisting of an Escher tiling of salamanders, and achieve a vanishingly low efficiency gap. Or create a map with maximally compact equal population districts, and have a high gap.

All the ‘efficiency gap’ does is measure how close a given map is expected to come to reproducing the results of proportional representation.

The ‘efficiency gap’ calculation could be used as part of identifying a gerrymander, certainly. If coupled with a shortfall of compactness or following geographic boundaries, it could suggest why the map had been drawn to fall short on those metrics.

But it’s not a test for gerrymandering by itself, at all.

[James Pollock]

so you confuse salamanders and gerrymanders.

[zztop8970]

I gather you’re not familiar with the origins of the term ‘gerrymander’.

[James Pollock]

I gather you’re a partisan apologiest for gerrymandering.

[Brett Bellmore]

Obviously, but only in the sense that Democrats use a different definition of “gerrymandering” than everybody used for the last 200 years. Rather like they’re into redefining “racism” to mean something different.

The goal is to game the definitions so that you automatically win, and attack anybody who refuses to adopt your gamed definitions as not understanding the topic.

[James Pollock]

Brett, let me break this to you gently.

Attacking Democrats to get to me will not work, for the simple reason that I am not a Democrat.
Nice try, though.

[zztop8970]

Than you gather wrong, and not based on anything I wrote.

[Lee Moore]

All the ‘efficiency gap’ does is measure how close a given map is expected to come to reproducing the results of proportional representation.

No, not really. It considers only the representation of the two largest parties and does not consider at all the representation (or lack of it) of smaller parties. In any real system of proportional representation – see anywhere round the world that uses it – voters and politicians do not coalesce into two large fairly heterogeneous parties, each of whch commands roughly half the votes.

They split into a larger number of more homogeneous parties, many of which get some kind of representation, and the political coalitions are then formed in haggling between the parties.

The efficiency gap purports to measure against a hypothetical standard set in a world of unicorns – two big parties in a proportional electoral system. It’s pure fantasy. There are arguments, of course, in favor of PR, just as there are arguments against. But whatever those arguments are – a PR system is completely different to a first past the post system. With PR people do not vote the same way as they vote with FPTP. FPTP does not pretend to proportionality, so measuring how well it does in achieving proportionality is ….. sociological gobbledygook.

[bernard11]

The ‘efficiency gap’ calculation could be used as part of identifying a gerrymander, certainly.

Hence, not gobbledy-gook.

[Brett Bellmore]

It is if you pretend that it actually IS a measure of gerrymandering. Though I prefer the term “misrepresentation”; The claim is clear enough, but wrong, and the people making it know that.

[wreckinball]

Legislatures make the maps. When the courts wade in that’s unconstitutional ass they did in PA.

[James Pollock]

Unconstitutional? In whom is the supreme judicial power vested?

[Sarcastr0]

Beenconstitutional since 1962.

https://en.wikipedia.org/wiki/Baker_v._Carr

[zztop8970]

The comment did not refer to “straightforward election results.” (notice how you moved the goalposts from ‘simple arithmetic’ to ‘election results’? I did, and so does anyone reading this thread), but rather to an attempt to come up with a “magic number” that would make interpret election results as ‘statistically lopsided’. 7% “efficiency gap” bad, 5% good.

..and did you miss that fact that Breyer said pretty much the same thing? Any words of criticism for him?

[bernard11]

I didn’t move any goalposts.

It’s a simple calculation based on election results.

[zztop8970]

You first claimed he made that comment with regards to “simple arithmetic”, then you change it to a claim about “straightforward election results’. These are not the same things , hence the goalposts moved. Perhaps you don’t understand what the idiom means.

Did you get a chance to reflect on Breyer’s comment? Any criticism of him as a political operative, or is that reserved for parties you don’t like?

[James Pollock]

“straightforward election results” involve “simple arithmetic”, so a rejection of one is implicitly a rejection of the other, with stationary goal posts.

[zztop8970]

When X involves Y, it do not make X equivalent to Y. Abortions involve a medical procedure. Support of or opposition to abortions is not the same as support of or opposition to medical procedures.

You seem to have a problem with basic logic, otr even basic English.

And Robert was not rejecting either simple arithmetic or election results as gobbledy-gook.

[BravoCharlieDelta]

The cognitive dissonance of these people is astounding. She simultaneously knows and doesn’t know what a woman is.

Imagine the long term harm believing like these people do must have on a human brain. Maybe it doesn’t impact subhuman brains as much, which is what Democrats are.

[Stephen Lathrop]

See, Lee Moore, BCD is poking fun. Pretty humorous, right?

[BravoCharlieDelta]

I wasn’t joking.

[bernard11]

You don’t have enough brains to make a joke.

[James Pollock]

That’s the joke.

[Rev. Arthur L. Kirkland]

Open wider, BravoCharlieDelta.

Guys like me are not nearly done shoving even more progress down the whining, bigoted throats of right-wingers like you. You get to whimper about it as much as you like, and the Volokh Conspiracy will gladly continue to indulge you in that regard, but you and the other clingers will continue to comply with the preferences of your betters.

[wreckinball]

There you are. Back to the gay sex references.

[James Pollock]

If you’re gay enough, everything is gay sex references.

[zztop8970]

now that’s a homophobic statement if I ever heard one.

[James Pollock]

So you never heard one, then?

[zztop8970]

I heard many, This is a prime example,

[Rev. Arthur L. Kirkland]

Is wreckinball the new screen name of that clinger who was always finding the ‘throbbing male member’ angle to every issue?

[ducksalad]

I suppose one could get all technical and say the Miers nomination was formally withdrawn, and therefore somehow reversed. Sort of like a person whose criminal conviction was reversed, we’d no longer count them as a convicted criminal.

[tuphat]

How do you know it was Miers that she omitted in her miscount? Could have been another nominee.

[Michael P]

Unlikely. Five women have been nominated, confirmed and appointed as justices. The only female nominee not to be confirmed was Miers.

[Kazinski]

Yeah, but do all of them identify as women in their private lives?

KBJ may have some inside information.

[Michael P]

I think the answer is clearly “no” as to O’Connor, Ginsburg and Barrett. Almost as certainly no for Miers. Sotomayor identified herself as a wise Latina, so probably no there too. And I don’t think Kagan has deferred to biologists on the question.

[Michael P]

Er, “no” being the answer to whether KBJ has inside information to the contrary.

[Rev. Arthur L. Kirkland]

Justice Barrett seems to identify as a handmaiden, as least when not seeking Senate confirmation.

[wreckinball]

Ha she identifies as a woman because she has a vagina. Something you may have never seen gay Rev

[James Pollock]

So show him yours.

[kkoshkin]

If confirmed (which seems likely), she would be the sixth woman who’s been nominated that has also had the chance “to serve” on the Supreme Court.

Maybe that’s not the best reading of her statement, but it’s not an unreasonable one, I think.

[Cal Cetín]

The first *intersectional* justice!

The first justice to marry a *doctor*!

And there’s religious diversity, too, because Wikipedia says her husband is some kind of Brahmin.

https://en.wikipedia.org/wiki/Ketanji_Brown_Jackson#Personal_life

[Don Nico]

“her husband is some kind of Brahmin.”
do you mean that he is a true believer in the Indian caste system? If you want discrimination, that is it.

[James Pollock]

cattle, obviously.

[Cal Cetín]

Here’s to the town of Boston
The land of the bean and the cod
Where the Lowells speak only to Cabots
And the Cabots speak only to God.

[wreckinball]

This Jackson woman is not too bright is she? Can’t count and can’t distinguish man vs woman.

[James Pollock]

You’re projecting.

[Bored Lawyer]

Off-topic, just saw this.

https://tmsnrt.rs/3qB3goJ
Interesting decision in the Seinfeld Copyright case.
Gibson Dunn, a national firm, represented Seinfeld in a copyright case. After they prevailed, they asked for $ 872k in fees and $ 100k in costs.
The Court (SDNY) called that amount “staggering” and awarded only $ 28,750 in fees and $ 92 in costs.
I would hate to be the billing partner on this one. When you overreach, you get smacked down!

[David Nieporent]

No, you’re missing the context. Seinfeld was the defendant; it’s not a contingency case. Gibson Dunn did not represent him with the expectation of recovering money from the plaintiff. The firm got paid, so the billing partner has nothing to worry about.

This was just an attempt to recoup some monies from plaintiff, in the nature of a quasi-sanction, and (based on the decision) they weren’t going to get more from him regardless of the size of the fee award. Judge Nathan reduced the fee/costs award by 90% because the guy couldn’t pay.

(Also, the initial costs reduction (before the 90% cut) was because almost none of those costs were recoverable at all — it’s hard to believe that a big firm like Gibson Dunn is still trying to get reimbursed for Westlaw.)

[Bored Lawyer]

I know Seinfeld was not the defendant and it’s not a contingency case. Where do you think I said that?

As for the decision, it’s true that, in part, it was reduced because of inability to pay. But not all of it.
Gibson Dunn asked for $ 872k in fees. The judge first cut it down to $ 287k based on what she thought was a reasonable fee. Then she cut it further based on the plaintiff’s financial ability.
Even at the first step, that’s a 2/3 cut in their fees. (Ignoring the request for the costs).

So that means, the firm charged almost $900k for what the court said reasonably should only cost almost $ 300k,

I am well aware that Gibson Dunn was paid. You are missing the point here. The client paid a huge fee for a litigation, in which the judge ruled a reasonable fee was only 1/3 as much. If I were the GC, I would be livid. This kind of decision can be really bad for client relations.
Large firms gouge their clients. I have seen it myself. This decision confirms it. (From what I can tell, the case was easily disposed of by a motion that could have been handled by two attorneys.)

[David Nieporent]

1) We don’t know what the firm charged for. A fee application isn’t the same thing as a bill. It’s routine to write off a significant portion of a bill for client relations purposes. (And these are not unsophisticated clients — Sony, Netflix.)

2) Your comment was about the fee award, not about the court’s analysis. You focused on the fact that she only awarded $28k, and you said “When you overreach, you get smacked down!”, implying that if they had only applied for a lower amount, Judge Nathan would’ve given them a bigger fee award. (Which sometimes does happen, but does not seem to be what happened here.)

3) That having been said, I agree that it doesn’t make them look great. Particularly things like claiming to have spent 150 hours for a fee application. They litigated this case like it was bet-the-company litigation, given the staffing they put into it.

[Bored Lawyer]

DN — you or I could have handled this case for $ 100k or less. You know that. Gibson Dunn charged a lot more than that to the client, I can guarantee it.

And this is a case where the judge observed that 20 minutes of research by the Plaintiff’s counsel would have revealed to him that his case was hopeless. So you need almost $ 1 Million as defendant to oppose that?

“A fee application isn’t the same thing as a bill. It’s routine to write off a significant portion of a bill for client relations purposes.”

IMO, hiding that is sanctionable conduct. A fee application is supposed to reimburse the client for what it paid (limited by reasonableness.) If the client only paid less, and they asked for more, that is misleading the Court. IMO.

[David Nieporent]

A fee application is supposed to reimburse the client for what it paid (limited by reasonableness.)

No; if that were the case, then contingency lawyers and pro bono lawyers couldn’t get attorneys’ fee awards. (A position that defense attorneys have tried to argue over the years, but that routinely gets rejected nowadays.)

Look, I agree with you that GD massively overbilled. I mean, BigLaw rates themselves are kind of insane, but they also spent way too much time on the case. My only quarrel with your position was your implication (or my inference, anyway) that they screwed up by asking so much and they’d have done better otherwise.

[Bored Lawyer]

Let me add this. The district judge observed:

At bottom, given the straightforward statute-of-limitations defense at the center of this case, Defendants’ request of $300,000 for drafting just the moving briefs alone is plainly unreasonable.
[footnote] As Defense counsel observed at the oral argument before Judge Parker: “There was no novelty here. There was no mystery here. This case was as dead on arrival as a copyright case can be. I’ve been practicing copyright for a lot of years, 30 years.”