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LegalSmash
26 May 2009, 07:28am
http://news.yahoo.com/s/ap/20090526/ap_on_go_su_co/us_obama_supreme_court

I am partial because I am the son of Cuban immigrants, but I would love to see a hispanic woman with that much experience on the high bench.

I REALLY like her commitment to constitutional integrity, her background, and the experience she brings.

Do you guys have any suggestions?

PotshotPolka
26 May 2009, 08:16am
Well since I pretend I'm a blind man with poor hearing skills when it comes to racial issues, I'm still on the bench, mainly because she isn't a blatant liberal or advocate of any specific issue, which is probably why Obama may nominate her since it would leave relatively few points for Congress to nitpick on.

http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085

Here's an opposition article I already dug up, but most of it looks kinda subjective.

EDIT: He just picked her on national television, so I guess it's official.

Red
26 May 2009, 09:34am
Her resume looks good, but I could really give a shit about gender/race. That shouldn't be a factor and picking somebody to fill that template is a form of affirmative action in my eyes, and for a seat on SCOTUS no less which is kind of lame.

I also don't want the SCOTUS to make policy, which she seems to favor, also her race based remarks "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male" are pretty fucked up. We don't need activist judges.

But with Obama as Pres there's not much hope otherwise.

Race is too big a factor in her being chosen that it doesn't sit right with me. At least she is well qualified, but again, no activist judges please.

OfC99LrrM2Q

She couldn't back track fast enough. "you know you know" no we don't know, you just said it's where policy is made.

Come on Legal, put race aside, you hate activist judges. Her race shouldn't take precedence over that.

LegalSmash
26 May 2009, 11:27am
Actually its her gender that is a big issue here, moreso than her race. Personally, I'd rather have a female hispanic than a white female because the latter in power tend to be fiercely leftist and liberal. As for my happiness over the issue, I am a hispanic, and its nice to see one of our own getting to such a prestigious position in government. I could care less if it was Obama or Cheney, or Bush that put her in. Although I will say, that I'd prefer it this way, because political appointees (like Gonzalez) can be royally fucked over (see Alberto Gonzalez) for the lulz whenever the CIC feels like it. It does not work the same way with the court. Rather than being the token minority to get offed this time when something goes wrong, its a minority in a position that requires skill and a great degree of deference.

The important factors for a judge to have are listed in the "bulwarks of justice". You have to understand that a judge's initial position position in front of the court is by no means what they will be on the bench: Eisenhower deeply regretted putting Earl Warren on the court because upon getting on bench he went on to preside over the most liberal court in US History. People expected the black judge to be liberal and he is by far the most conservative judge on the court right now.. it is a crapshoot really.

Regarding her experience: I love the fact that she has experience as a trial lawyer, I've seen some naysayers talk about her being a bully on the bench (TNR article posted by polka), but Scalia is similar on the bench, if not more of a bully, and many persons who look at the court impartially do not see that as a bad thing. We WANT the court to have a few persons who will badger advocates and really make them consider their arguments, and their respective client's position in the face of the greatest court in the land.

In my opinion, while law professors make great law professors, I do not necessarily believe that they make great judges anymore than a california Governor, a banker, or a high school educated farmer. I think that trial experience will be beneficial to bring to the bench, especially since the candidate appears to have both private and governmental work. Law Professor work is helpful to understand and write about minutia, but knowing the exact wording of something your clerk is going to do for you anyway is not going to be helpful to the court in determining a case regarding the DMCA, FOIA, FAR, or Patriot Act. We need judges who have gotten their hands dirty on more than one side of the ball.

Some persons consider the court should be like a dictionary, or a google for law, or an encyclopedia. To this I pose the question: then what is the point of the court if all it will do is point at what the statute is. For that, stop paying them, alter the constitution, and just put a search engine in their place. The court's purpose is to interpret statutory law and apply it to factual situations, creating precedent. This is the nature of common law, which our nation proscribes to, except for louisiana in their state matters.

The problem with a court that solely 'reads the law outloud' is its not common law style justice. A large part of law is determining what is equitable in a situation, and its the purpose of the judge to determine that. Having a judge that has experience seeking equity in court, is in my opinion a worthwhile venture. I'd take a family law attorney in the supreme court over a business man any day because the court gets to hear experts on issues of business, on the other hand, experience in dealing with family law is only learned through first hand work, and no textbook on earth can teach you to deal with clients outside of experiencing it yourself. This is not to say that businessmen don't belong in the court, they do, but where business expertise would be useful. Preconceived notions of knowledge on a subject seriously screw up supreme court decisions, look at the 1960s for example, with the cases regarding antitrust and mergers. The judges were quite terrified to let a 3% consolidation in the market occur... we live in an era where some companies own 70-90% of a market, WORLDWIDE. Back in those days, the judges felt they "knew what was good as per _______" and had no desire to listen to the expert in the seat, retarding American business growth throughout the 60-70 period.

There is little to argue about here, she has good qualities, in my opinion as an attorney. I think that the court could use a different kind of judge, in experience, background, and yes, ethnicity and gender. I'm honestly tired of "repeat judges" (Alito is known as "little scalia"), and truth be told, Sandra Day O'Conner was a pretty good judge, and didn't let her vagina get in the way of her job.

We'll see what happens at the confirmations.

LegalSmash
26 May 2009, 11:37am
My big tests for a judge are:

1. Are marriage issues a STATE issue under police power, or do you feel need to make it a federal issue where race is NOT a factor.

-To me where race, religion, or gender (not orientation), are at issue, marriage issues CAN be federally dealt with where the state is unwilling to commit to proper preservations of rights (no preventing asians and jews from wedding).

2. Where corporate officers operate within the business judgment rule, should criminal liability, or civil liability be imposed for socially irresponsible behavior?

-No, but companies should not be propped up on tax dollars, ever.

3. Does the Criminal Justice System, paid for by the taxpayers serve a purpose of punishment, rehabilitation, incapacitation, or deterrence?

-Depends on the criminal, but always should include punishment.

4. At what point do federal incentive programs impinge on state rights, and where conflict of interest or seperation of power issues arise, to which side does the judge go?

Strict Constitutionalism here.

5. Are teenagers to be considered to have the same rights as an adult?

- No.

6. To what degree is constitutional interpretation appropriate? Does the judge deviate on social issues as opposed to business issues?
- If there is a large deviation to either side, I find the judge unfit. The constitution is made to adapt, but the key there is ADAPT, not "GET THE FUCKING CRAYOLAS OUT AND LETS PAINT ON IT".

broncoty
26 May 2009, 03:39pm
5. Are teenagers to be considered to have the same rights as an adult?

- No.


:sad::sad::sad::sad::sad::sad::sad::sad::sad::sad:

LegalSmash
26 May 2009, 03:49pm
:sad::sad::sad::sad::sad::sad::sad::sad::sad::sad:

lol.

PotshotPolka
26 May 2009, 03:57pm
lol.

Well there is emancipation, but it is only provided in rare scenarios.

LegalSmash
26 May 2009, 04:02pm
Well there is emancipation, but it is only provided in rare scenarios.

Well, specifically, I am more concerned with children attempting to receive abortions, small scale surgery, dental procedures without proper notification of parents, when medical care is critical post-procedure. When the parent finds out that the kid died because of bleeding due to one, they sue the doctor, driving up his MP rate, and his general rate for everyone. At that rate, I'd rather just the idiot kid do whateveer they need to do with the parental heads up, in case he/she starts to bleed like a scieve .

PotshotPolka
26 May 2009, 04:09pm
Well, specifically, I am more concerned with children attempting to receive abortions, small scale surgery, dental procedures without proper notification of parents, when medical care is critical post-procedure. When the parent finds out that the kid died because of bleeding due to one, they sue the doctor, driving up his MP rate, and his general rate for everyone. At that rate, I'd rather just the idiot kid do whateveer they need to do with the parental heads up, in case he/she starts to bleed like a scieve .

Well in that case by all means, I just meant in regards to near of age individuals after say, their guardians are both deceased or deemed no longer fit to be so.

phatman76
26 May 2009, 04:29pm
Some persons consider the court should be like a dictionary, or a google for law, or an encyclopedia. To this I pose the question: then what is the point of the court if all it will do is point at what the statute is. For that, stop paying them, alter the constitution, and just put a search engine in their place. The court's purpose is to interpret statutory law and apply it to factual situations, creating precedent. This is the nature of common law, which our nation proscribes to, except for louisiana in their state matters.



That is not Strict Constitutionalism, that is literalism, which are two similar schools of thought with important differences. We are not a de jure common law nation either, and rarely even a de facto one. None of the liberals on the SCOTUS ascribe to using older precedent, and only Clarence Thomas and Scalia regularly (though rarely) use pre-United States legal precedent. I disagree with the fundamental premise of common law, however, which hands the power to create laws and rights over to the court. This is not the structure of our government. Our Supreme Court exists to examine current law in light of past decisions and the Constitution and render judgement, yea or nay. A recent aberration is the tendency to mandate changes when they render a nay vote, which I don't support. This allows for legislation from the bench, which undermines the principles of republic on which our nation was founded, instead replacing our elected representatives with unelected lawyers following their own ideologies.

Sotomayor will be a left wing liberal. She is not the worst, she had to be good enough to get on the Second Circuit, so she is at least smart and knowledgeable. She will not be any different than the justice she is replacing, except for being ethnic and younger. These are not concerns except that they mean she will be on the bench a long time. I am certain she will strike many blows against the executive and legislative branches in her quest to increase the courts influence into issues as a legislative body, especially turning issues of rights rendered by congress or amendment into issues of "civil rights" to be granted by the court.

LegalSmash
26 May 2009, 07:26pm
am certain she will strike many blows against the executive and legislative branches in her quest to increase the courts influence into issues as a legislative body, especially turning issues of rights rendered by congress or amendment into issues of "civil rights" to be granted by the court.


Regarding the definition of strict constitutionalism, I'm quite familiar with it, but it was not what I was getting at, rather I was getting at the fact that many so called judicial conservatives act as if our judges should be practicing inquisitorial style codified law, ala France and Louisiana, which I completely disagree with.

As for your above quote , I disagree. If anything the court's philosophy has moved away from forcing civil rights onto the states as a whole, and has grown pro-business in economic cases.

What is comical to me is the fact that you are saying she will strike blows against the exec and the legislative, those two groups are way too busy stealing powers from each other. The reality is the court has PREVENTED overstepping of seperation of powers numerous times in the past two decades, (mistretta, hamdi v. rumfeld, the clinton line item veto, congressional legislative veto, and any of the agency cases are good examples). If anything congress and the exec are the ones that need to be closely watched for usurpation of power and seperation of power issues.

The court is 4 v 4 presently, with Kennedy as a swing. The judge she is replacing is much more liberal than her in practice, DESPITE the fact that when Bush I had him seated, it was to be "a homerun for conservatism", in short, this is the man who penned the infamous "Wade should not fall to political pressure" line in Planned Parenthood v. Casey. The judge being replaced was a marked failure by the GOP to properly vet a justice nominee, and for that matter, pick a conservative with some degree of judicial pragmatism. I doubt her appearing on the court will kick anything any further left than it already ever gets. For that matter, if you look at some of her decisions, including the Major League Baseball strike case, the NFL Draft case, and her upholding of pro-life bush programs, you can decidedly see the Woman is not flat out leftist.

I think a LOT of flak coming at her is primarily because of who is nominating her, rather than what she stands for, and in typical Noveau GOP (what I consider to be the GOP post Bush, who are pretty paltry compared to the party of Eisenhower, Ted Roosevelt, and even Regean to a large degree) fashion, they begin to call race as the main factor. Race here, if anythign is a good thing, look at the white female judges on the circuits right now, many of them are hyper feminist cunts.. the types you find bitching about not being able to stand up to pee without men gawking. I think compared to some of his other potentials, this lady is the least offensive (C'mon, Napolit-bull-dyke-tano on the supreme court? That woman doesn't know her ass from a hole in the ground).

The court's purpose is to review the law, see Marbury v. Madison for that one, its called judicial review, and where the court finds something lacking to strike it down. The court is not an enforcement tool, that is the executive branch's job, nor do I believe, or should anyone believe that the court should MAKE legislation, or remove from the people their right to vote and decide issues for themselves (Thank you CA Supreme Court for having some damned sense), but the court IS the nation's conscience, whether you wish to admit it, or believe it, or just ignore it. Part of being that conscience is to look to equity to determine what the law does not state, and that IS a common law principle, and an underpinning of our entire legal system I think right now as it is, and should this woman's nomination go through, the court will remain representative of that conscience.

I'd really hate to see it become anything but.

Red
27 May 2009, 09:33am
This is the judge that sided with black/hispanic prospective firefighters who sued because whites did better on the firefighter tests and said the test was racist.

Seriously wtf.

Her 60% reversal rate is also pretty high.

Lol i just found this. In 1997 the Republicans tried to stop her rise to power fearing she was an activist judge that the Democrats would eventually want to put into the SCOTUS. How right they were.

http://www.nytimes.com/1998/06/13/nyregion/gop-its-eyes-on-high-court-blocks-a-judge.html?fta=y&pagewanted=all

LegalSmash
27 May 2009, 12:17pm
This is the judge that sided with black/hispanic prospective firefighters who sued because whites did better on the firefighter tests and said the test was racist.

Seriously wtf.

Her 60% reversal rate is also pretty high.

Lol i just found this. In 1997 the Republicans tried to stop her rise to power fearing she was an activist judge that the Democrats would eventually want to put into the SCOTUS. How right they were.

http://www.nytimes.com/1998/06/13/nyregion/gop-its-eyes-on-high-court-blocks-a-judge.html?fta=y&pagewanted=all

re the Ricci case:

Actually it was the black firefighters that were the ones that failed, the whites and hispanics passed. As for that case, it was sent to the SCOTUS, to be decided there, because no matter who won it was going to go up the flagpole anyway. The STATE, decided to can the test because the black guys who took it 27 of 196 all failed, and the state got cold feet and shit itself in fear of a title VII claim against them... it was not white v. minorities here, its an issue of state invalidating the test.

Re Reversal rate, I'd like to see the cases she was reversed on and on what grounds, at least by analyzing that we can tell where her judicial philosophy lies. She currently has more experience in practice and on the judiciary than any other supreme court justice nominee that would likely be appointed. A Judge's reversal rate is also illuminating as to the amount of cases she's done, a great deal of which have been on varied levels of the judiciary, which is a good thing, especially when it comes to determining whether the court should take, or abstain from taking a case.

What I find particularly comical from the detractors is that they are yelling "ZOGM she gon' be liberal", despite the fact that she is replacing an exceptionally liberal judge on the court, and she is decidedly LESS liberal than J. Souter given her case record on divisive issues in the courts. Also, recall the fact that considering all the other people obama can put in, she's probably the least liberal that would pass congressional muster.

Here's an article on the woman from the NYT. (in response to the polka's TNR article) http://www.nytimes.com/2009/05/27/us/politics/27websotomayor.html?pagewanted=1

Also, care to share a list of the reversed cases?

PotshotPolka
27 May 2009, 04:37pm
http://online.wsj.com/article/SB124338457658756731.html

WSJ put out a good "wait-and-see" article on her, and here is a list of controversial points and backround info from CNN. http://www.cnn.com/2009/POLITICS/05/26/sotomayor.resume/index.html

broncoty
27 May 2009, 09:34pm
Well, specifically, I am more concerned with children attempting to receive abortions, small scale surgery, dental procedures without proper notification of parents, when medical care is critical post-procedure. When the parent finds out that the kid died because of bleeding due to one, they sue the doctor, driving up his MP rate, and his general rate for everyone. At that rate, I'd rather just the idiot kid do whateveer they need to do with the parental heads up, in case he/she starts to bleed like a scieve .

O i agree with that.

TEENS RIGHTS! :usa2::usa2::usa2:

Red
28 May 2009, 09:16am
http://www.cbsnews.com/blogs/2009/05/27/politics/politicalhotsheet/entry5044428.shtml

She doesn't believe in the individual's right to own firearms.

No-go

From a person's stance on that one Issue alone you can tell if they trust the masses enough to defend themselves or if they think the masses should bend to the will of government and rely on it as a crutch.

LegalSmash
28 May 2009, 09:25am
http://www.cbsnews.com/blogs/2009/05/27/politics/politicalhotsheet/entry5044428.shtml

She doesn't believe in the individual's right to own firearms.

No-go

From a person's stance on that one Issue alone you can tell if they trust the masses enough to defend themselves or if they think the masses should bend to the will of government and rely on it as a crutch.


By contrast, the Ninth Circuit, by some counts the most liberal in the nation, ruled in April that the Second Amendment does apply to state laws. Meanwhile, Maloney, the defendant in the New York case, is appealing his loss to the U.S. Supreme Court, and the Seventh Circuit heard oral arguments this week in a related case.

Something with a name like "incorporation doctrine" may sound like an obscure topic only a law professor could love, but it's really not. These disputes will decide whether or not states and municipalities can legally disarm their residents, or whether the Second Amendment right the Supreme Court recognized last year in D.C. v. Heller applies to state and federal laws equally.

In some sense, if Sotomayor holds the same views as the man she's been selected to succeed -- retiring justice David Souter -- not much will change in terms of Second Amendment jurisprudence. Souter disagreed with Heller's 5-4 majority opinion, signing on to a dissent that said: "The majority's decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems." But based on Candidate Obama's remarks last year, gun owners may have hoped for more. Mr. Obama's campaign platform said he "believes the Second Amendment creates an individual right, and he respects the constitutional rights of Americans to bear arms."

Souter rejected the idea of the Second Amendment protecting an individual right; in her 2004 joint opinion, so did Sotomayor. During confirmation hearings, expect pro-gun senators to ask the judge if she agrees more with her predecessor or the stated views of the president who nominated her.

Souter is about an antigun as you get on the court, and hes from freedom lovin' new hampshire.

Red
28 May 2009, 09:46am
Souter is about an antigun as you get on the court, and hes from freedom lovin' new hampshire.

I knew this is exactly the point you would bring up.

Just because the balance of opinion would remain the same, I still don't approve of her.