loquitur

I'm rapidly getting disgusted by the hearings. There are a few reasons why.

1. Pres Obama won the election and with it the power to appoint judges. Yes, the Senate should be screening for competence, cronyism and corruption, but past that, the President is entitled to nominate whoever he thinks best. I have thought that ever since I graduated law school (i.e. I was OK with Scalia, Rehnquist's elevation to CJ, Bork, Kennedy, Thomas, Souter, Ginsburg, Breyer, Roberts and Alito. I didn't approve of Miers because of cronyism and competence.) Sotomayor has been a pretty good judge for 17 years, no one questions her ability or her performance, so what the hell is the problem? She's not who I would pick, but I'm not the President. Barack Obama is.

2. This bullshit about her speeches is just that, bullshit. She spent roughly a decade on the Second Circuit and a number of years before that in the district court. Is there any evidence -- even a smidgen -- that in all that time she preferred any litigant based on race or ethnicity? Sen Schumer may be a loudmouth, but he's 100% right - her record shows she is 100% a straight shooter. A bit left-leaning, but so what? I'm a believer in revealed preferences: people may say lots of things but if you want to see what they really believe, watch what they do. Whatever she may have said in speeches to some of the narrow audiences she spoke to, the fact is that she has been a careful and mainstream judge. (Yes, I know about Ricci; that was a panel decision, and I don't know why the other two judges chose the summary affirmance route. I don't practice in this area, but from what I understand the result was defensible based on prior law, and the district court opinion was pretty exhaustive.)

3. Those speeches about the wise Latina were, shall we say, unremarkable in context. Understand, I think this ethnic glorification is bullshit and probably dangerous long term to the country, but I live in NY and I'm very in tune with left-wing orthodoxies. This sort of comment is utterly unremarkable and probably was uttered with barely a thought. It's sort of like a club handshake; in the circles she was in this is probably as common as "good morning" or as common as (to use another stereotype) Texans having a conversation about their guns. Again: there is no evidence that, whatever lefty pieties she might have uttered, any of that stuff made its way into her judging. So what the hell is the problem?

4. The grandstanding and pontificating from our Senators is just silly. This is an example of how politics infects everything and even keeps peopel from doing their jobs. The Repubs want to score points against the Pres's nominee, so they ignore her record and look at her speeches. Please. This is yet another example of how government decisionmaking is distorted, irrational, self-serving and often counterproductive -- and why we should err on the sideof entrusting it with as little as possible.

aceventura3

I am disgusted with the hearings also. To me it is an exercise for the nominee to spend several days moving their lips but not say anything.

With Sotomayor, my view is simple. She was either being dishonest when she spoke to the audience talking about a wise Latina, or she is being dishonest now. Personally, I don't have a problem when people have honest and admitted biases. When they try to hide them is when I am concerned.

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"It is useless for the sheep to pass resolutions on vegetarianism while the wolf is of a different opinion."
"If you live among wolves you have to act like one."
"A lady screams at the mouse but smiles at the wolf. A gentleman is a wolf who sends flowers."

Rekna

The most annoying part for me is the issue with the firefighter case. They make it out like she made some extremest decision, despite the fact that other judges on the same panel agreed AND nearly half of the supreme court agreed with her.

One of the GOP senators said something along the lines that any judge who believes something that is contrary to the law is unqualified for the position. My question for that senator is does that mean every judge who believes abortion should be banned is unqualified to be in the supreme court?

SecretMethod70

Or does it mean that every time a supreme court judge votes on the losing side, they no longer qualify for the court?

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ratbastid

That senator needs to go back to Civics Class. The job of the SCOTUS is to interpret the law. Their interpretation becomes law. By definition, a SCJ can't possibly "believe something that is contrary to the law" as if there IS a thing called "The Law" prior to the SCOTUS interpreting it.

It's hard for a congresscritter to get his head around, I guess, but every single word of law they pass is only provisionally the law, until the SCOTUS gets a case that challenges that law and the law is upheld.

loquitur

ummmm.......... not exactly, ratbastid. In theory judges discover law, not make it (there are lots of reasons why that has to be so that are critical to maintaining the rule of law in this country). And you're wrong about acts of Congress: they are the law unless and until there is a constitutional challenge that strikes one down. And those are very, very, very rare. No significant percentage of legislation is even challenged, much less struck down. Legislation is presumed constitutional under longstanding rules of interpretation.

I think part of the issue people have trouble with is that a lot of Supreme Court decisionmaking is not so much what the policy should be as who gets to decide. Sometimes a law is poorly written, or doesn't mean what some people think, so Congress gets to rewrite it. Sometimes a state should make a decision rather than the feds. Sometimes a decision is for Congress rather than an agency, or the Pres rather than Congress, or an agency rather than a court. Focussing too much on who wins and who loses in a particular case distracts you from looking at what is really being decided. Don't confuse a federalism decision with the result of the case.

Most cases don't implicate the limitations on governmental power (mainly in the bill of rights). Heck, most of the Supreme Court's work is in interpreting statutes - i.e. trying to figure out what Congress did. And since Congress isn't exactly the most coherent body, the answer isn't always one that people like - but, in such cases Congress can always fix the perceived problem (as it did with the Ledbetter case, for example).

dksuddeth

I'm sure that none of this 'point scoring' and pontificating was even slightly attempted with the nominees by GW Bush, right? all of those hearings were righteous?

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

Derwood

they've all been ridiculous. the partisanship is out of hand

Mojo_PeiPei

Am I wrong to ask this....

The people nominated for the SCOTUS cannot make statements about their philosophy, or how it would apply to any possible case that might come before the court right? I mean that in a case by case basis. So why the hell do people bother with asking case/issue specific questions?

Even if I am wrong in that, what do they expect her to say? In regards to abortion she would have every clinic shut down tomorrow if she could? These hearings are political, she obviously wants the nomination, I'm sure there is something more productive that could be done over the course of the last few days.

As far as her comments, they are mostly harmless, although I do think her statement where she said that the appellate courts are supposed to make policy, and where she chuckled and noted seconds after because she said that on camera, was retarded of her.

Wise Latina? Meh, stupid, offbase, fairly in conflict with the whole notion of justice, hence the lady is blindfolded: All the same, no biggie. I'm not to worried about her, she seems even keeled enough, albeit boneheaded at times (ala Ricci).

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loquitur

Mojo, there is nothing wrong with asking for judicial philosophy in terms of "how do you approach deciding cases? what sources do you use, what sorts of things do you find persuasive?" That's perfectly ok; we wouldn't want a justice who consults a psychic, right? But it's wildly improper to ask how someone would rule on a case that hasn't even come before them yet. For one thing, it's massively unfair to the particular litigants, who are entitled to an impartial judge who hasn't already publicly declared how they would rule. But it's also impossible to answer these questions in the abstract because you just don't know what the facts will be of the particular case that ends up coming to the court. Lincoln had the best comment on this; I wish I could remember it, but it went something like "if a judge told us in advance how he would rule we should despise him."

ratbastid

I guess my point is that treating The Law like some immobile and invariable body of extrinsic facts is absurd. Especially when you're talking about a position that is charged with interpreting The Law.

Zeraph

I love her name <3!

Jinn

The only thing that bothers me is the sheer, unbridled, failed-at-reading, proof-texting, out-of-context ignorance surrounding the "wise Latina" quote. It's a quick litmus test of who is even worth discussing politics,with, though. Anyone espousing the "racism" of said statement is clearly incapable of critical thought or reading, and have either willfully ignored the context or will do so when I identify it. Hasn't failed me yet.

The last thread on TFP regarding Sotomayor had the same result, in fact.

They're generally the same people who believe that Obama is not an eloquent speaker, or that he somehow is tied to a teleprompter. I feel bad for them, to be honest, because their vocabulary and/or understanding of grammar is so underdeveloped that they miss at least half of what is said. Words have very specific meanings, especially when combined in sentences. Those aware of specific meaning will note all sorts of extemporaneous speech tactics, from deference to apositives, that dramatically alter not only what is being said, but how it should be understood.

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dksuddeth

I actually think this line of thinking is absurd. It's the equivalent of saying 'that was the law last year, this is the law now'. It doesn't work.

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

ratbastid

Except that that IS how it works. Check out the history of abortion law in this country. Current law stands because of a very famous Supreme Court case. Prior to that, that wasn't the law. The gavel banged, the law changed. Ta daaa!

People who think that even such a fundamental document as the Constitution is somehow written in stone and unchangeable for all time are just not thinking from where the founding fathers were thinking from. The founders were clear that the times would change, and they designed our structure to be malleable to keep up with the times. It takes some work--amending the Constitution isn't a trivial task. But it's designed in there precisely because they KNEW they couldn't predict the future, and they weren't going to try and pretend they could.

There IS no "what the Constitution says". It's a brilliantly constructed thing that deliberately leaves room for interpretation. Despite its claims to the contrary, strict constructionism is just one possible interpretation. It claims NOT to be an interpretation, and can therefore lay claim on being Right. But it's not--it's just one of many possible ways to read the document. This is the beauty of our nation; it's ours to invent, rather than being some dusty Truth to be pulled off a shelf and referred to. People think democracy was the big innovation of America, but I think it's the power to re-invent ourselves that makes us unique.

loquitur

uh, not exactly, Ratbastid. There is a reason it was written, because words have meaning. Otherwise why bother writing them down? I agree that the Constitution was written flexibly, but that does not mean that the meaning of a word changes over time. You can't say that the Constitution says "Pres must be 35" but today it means "states can't secede." That's an extreme case, but my point is this: there is a different between flexibility and evolution. The Founding Fathers (and yes, they were men) wrote the Constitution as they did in order to make sure that the govt could never do to the citizens what King George did to the colonies - they were very clear about that, and meant it not to change over time. That doesn't mean "impair the obligations of contract" or "privileges or immunities" or "due process" aren't flexible concepts - they are - but their meaning doesn't change, only their application does. The priviliges or immunities clause doesn't evolve into something else, it still has to pertain to privileges and immunities. I think you're setting up a strawman here.

dksuddeth

I didn't say that isn't how it works, I said it doesn't work. If it did, we'd all be happy go lucky with every ruling and there wouldn't be any conflict after a decision. Instead, we have to deal with groups of an ideological bent either agreeing or disagreeing on plain word meanings of what a well regulated militia was in 1798, or what probable cause meant, or shall make no law really means that they can prescribe free speech areas.

there is a huge difference in accepting that the constitution is allowed to be changed by the prescribed method and the so called 'living document' theory that allows judges to change the meanings of words on the fly. The constitution IS written to be firm, but does allow for changes if a greater portion of the population deem it needs to be.

allowing 'interpretation' is exactly the reason why we have the political divide in this country. The founders were extremely clear when it was written. All evidence from that era concludes it's truth. It took dozens of debates to get the words just right for the citizens of all 13 states to ratify it.

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

ratbastid

About some things, yes, they were very specific--loquitor's 35 year old president example is pretty hard to interpret to mean anything else. Other things are (deliberately!) vague and demand a contemporary mind to apply to contemporary times. And the existence of an amendment process tells us exactly how "strict constructionist" our SCOTUS was intended to be. Which is to say: not.

dksuddeth

if things were meant to be vague, there would be no reason to prescribe a change to the constitution. The founders would simply have inserted another clause allowing the central government to change things at will. they didn't do that though. They outlined specific enumerated powers. they also left, in no uncertain terms, that anything not assigned to the federal government was specifically left to the states or to the people (10th Amdnt).

"No one can read our Constitution without concluding that the people who wrote it wanted their government severely limited; the words "no" and "not" employed in restraint of government power occur 24 times in the first seven articles of the Constitution and 22 more times in the Bill of Rights." — Edmund A. Opitz

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

loquitur

actually, ratbastid, the existence of an amendment process implies that the meaning of the constitution doesn't change, and that if you want something new or need to fix something you have to go through the amendment process.