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Post by AustinHoya03 on Jun 29, 2009 17:12:43 GMT -5
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Post by strummer8526 on Jun 29, 2009 17:58:58 GMT -5
No, the fact that she got reversed should not matter. It's a right-leaning court because our previous President was a Republican and he appointed two conservative judges. Now, it's time to inch back the other way. That's the cycle and why the Court typically remains ideologically split. The more interesting question is whether the opinion she and two other judges wrote—an opinion which really did not do justice to the major constitutional issues in the case—should have an effect on her hearings. I really don't know how I feel about that one. |
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hoyarooter
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Post by hoyarooter on Jun 29, 2009 20:23:25 GMT -5
I concur with Strummer's opinion. Non-issue.
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Post by Coast2CoastHoya on Jun 29, 2009 20:45:22 GMT -5
Concur with both.
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Post by StPetersburgHoya (Inactive) on Jun 29, 2009 21:29:47 GMT -5
I concur with strummer. I'd also add that the real issue is not the fact that it got overturned - when the court grants certorari to a case there is a very high likelihood that they are going to reverse the result at the Court of Appeals level at least in part - that's how a court that hears appeals largely on the basis of discretion works (except for cases from 3 judge district court panels and matters of original jurisdiction in the court - go Barbri).
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Boz
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Post by Boz on Jun 29, 2009 21:45:27 GMT -5
Where is this fantasy world in which you all live? Can I get there from here? Do they have lollipop fields and clouds made of cotton candy there? Of course this is going to be an issue. I think what you are saying is that it shouldn't be an issue. Honestly, I am not going to weigh in on that one, simply for the fact that I am aware that about 99% of you are lawyers and I didn't even GO to law school, let alone being able to be sick the day they taught law there. But come on. You have a pretty controversial case, a judge who has made a fairly controversial statement with respect to a key aspect of that case, a national capital that still has more tension than ever, and a Republican party that is chomping at the bit to slam into this nominee with anything at their disposal. Oh, and did I forget that it's 2009 and the 24-hour media and Interwebs can pretty much make anything an issue that they want to?? Now. Having said all of that, and this will be an issue that is talked about both before and definitely during her hearings, at least by Republicans, none of that is going to prevent her from becoming the next associate justice of the Supreme Court. So, if by "issue" or "effect" you mean "something that could torpedo her candidacy," well in that case I agree and no it won't. Then again, I'd be hard pressed to think of something that would. We could find out tomorrow that she was Mark Sanford's mistress and it still probably wouldn't stop the Senate from confirming her.  |
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Post by AustinHoya03 on Jun 29, 2009 22:38:22 GMT -5
The more interesting question is whether the opinion she and two other judges wrote—an opinion which really did not do justice to the major constitutional issues in the case—should have an effect on her hearings. I really don't know how I feel about that one. This is why I used quotations around the words "Sotomayor opinion." For those that haven't read the 2nd COA opinion, it's here. It's a freaking per curiam panel op that says little if anything about the nominee, yet the media is wetting its collective pants this evening -- SOTOMAYOR REVERSED, CONTROVERSIAL CASE, OMG!!! The consensus on this board comes as no surprise -- both "issues" are non-starters within the legal community, but these are already "issues" in the media. There's going to be a lot of talk about this tomorrow, particularly on red-meat right-wing talk radio. You can bet at least a couple of the lunatic fringe Republican Senators (cough cough...Cornyn...cough cough) will interpret whatever Rush preaches to the faithful as license to act like partisan hacks at Sotomayor's confirmation hearings. PS: Thanks to Boz for being the first person to actually say something in this thread. |
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Post by strummer8526 on Jun 29, 2009 22:39:32 GMT -5
Where is this fantasy world in which you all live? Can I get there from here? Do they have lollipop fields and clouds made of cotton candy there? Of course this is going to be an issue. I think what you are saying is that it shouldn't be an issue. Honestly, I am not going to weigh in on that one, simply for the fact that I am aware that about 99% of you are lawyers and I didn't even GO to law school, let alone being able to be sick the day they taught law there. But come on. You have a pretty controversial case, a judge who has made a fairly controversial statement with respect to a key aspect of that case, a national capital that still has more tension than ever, and a Republican party that is chomping at the bit to slam into this nominee with anything at their disposal. Oh, and did I forget that it's 2009 and the 24-hour media and Interwebs can pretty much make anything an issue that they want to?? Now. Having said all of that, and this will be an issue that is talked about both before and definitely during her hearings, at least by Republicans, none of that is going to prevent her from becoming the next associate justice of the Supreme Court. So, if by "issue" or "effect" you mean "something that could torpedo her candidacy," well in that case I agree and no it won't. Then again, I'd be hard pressed to think of something that would. We could find out tomorrow that she was Mark Sanford's mistress and it still probably wouldn't stop the Senate from confirming her. Oh yeah, I was saying that the mere fact that she got overturned SHOULD not be an issue. Quite frankly, I don't love some of her comments concerning race. At the end of the day, I want her confirmed, but I don't think she'd be my favorite of the candidates Obama was choosing from. But that might just be that as a white male, I lack the wisdom to fully appreciate her. |
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EasyEd
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Post by EasyEd on Jun 30, 2009 9:48:04 GMT -5
She will be confirmed easily. Some Republicans will make an issue of it and she will be questioned about it during confirmation hearings (if allowed) but she will be confirmed with many votes to spare. The bigger question is how four Supreme Court Justices (plus Sotomayor) can't understand that discrimination based on race is against the law. Remember some African Americans passed the test but their scores were not as high as some white persons who also passed the test.
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rosslynhoya
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Post by rosslynhoya on Jun 30, 2009 10:34:31 GMT -5
Republicans looking at the big picture also have a strategic question to answer- is Sotomayor's nomination preferable to whoever Obama would substitute for her in the event that she's removed from consideration (a la Miers). This is the darker side of Strummer's comment immediately above. The liberal activist judiciary is a fairly deep reserve of talent upon which Obama can draw, and yet what came to the top is Sotomayor. Again, this may be better suited for a dorm room bull session, but wouldn't the conservative movement potentially benefit from seating an adequate justice, one who's a reliable replacement for Souter and little more?
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Boz
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Post by Boz on Jun 30, 2009 10:50:01 GMT -5
I would also like to add, we really should not consider it a BAD thing if she is asked, yes even grilled, about this or any other decision she has issued as a judge.
This is the job of the Senate, no? I think it's a legitimate issue to discuss how many of her decisions have been overturned -- or, more accurately maybe, how there are several decisions in which she has sided with the overturned judgment, even if she didn't write the opinion.
Honestly, any fire and brimstone from a Cornyn type aside, don't you think it's worth discussion during the advice & consent process?
Moreover, I think her controversial comment about race is a legitimate topic to bring up during the hearings. As well as her comment about how the judiciary "makes law." I'm sure she will answer those questions just fine, but I think the Senate would be remiss in not asking them.
These are not questions or topics about alien pubic hairs. Again, I defer to the lawyers on whether these questions comprise a significant doubt about the candidates qualifications, but I hardly think they are irrelevant to that evaluation.
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Elvado
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Post by Elvado on Jun 30, 2009 11:33:53 GMT -5
Has everyone here lost sight of the actual case involved here? Those whoperformed the best on a promotion test will presumably be rewarded for excellence. Regardless of whose opinion was overturned, they got it right.
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hoyarooter
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Post by hoyarooter on Jun 30, 2009 12:51:29 GMT -5
Austin asked if the reversal would have any effect on her confirmation hearings. I interpreted that to be a question about her likelihood of confirmation. The answer to that is unequivocally no. But perhaps I misinterpreted the question - if Austin was merely asking whether the reversal will introduce an avenue for questioning, the answer is clearly yes, as it should. The Senate would not be performing its responsibilities if its members failed to ask probing questions. What I can live without are the Rush-ites foaming at the mouth and spouting off inanities about how Sotomayor is a racist.
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Cambridge
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Post by Cambridge on Jun 30, 2009 14:19:30 GMT -5
I read this case as not so much about discrimination as about municipalities taking steps to protect themselves from civil rights litigation, as that is what New Haven was trying to do rightly or wrongly. New Haven wasn't acting out of a sense of altruism for the minority firefighters, it was acting so as to avoid the very likely prospect of a discrimination suit.
As for the rest of the opinions in this thread, I agree with most of them in that it will be an issue and it will have little to no impact on her chances of confirmation.
As for the underlying issue of the test, I think that merit based hiring is key to any good capitalist democracy and therefore I find any deviation from that as strange and alien. In this case, I feel that the test was probably a good and fair indication of merit -- my only caveat being that I've never seen the test -- however, I will admit that there may be tests in some rare scenarios -- I strongly doubt it is the case here -- which are discriminatory against certain segments of society. How might a test be discriminatory? Well, it is hard to imagine, but I would imagine it would have to involve building in inappropriate and irrelevant non-shared cultural/socioeconomic/religious/etc. knowledge into the question or answer. I could see a firefighting test being discriminatory against urban Northeasterners if it assumed the test taker knew what a chitterlings was or against an atheist if it assumed knowledge of christian scripture. However, as I said above, I can't possibly imagine that this test was discriminatory in this manner and therefore find the Supreme Court's decision to have been correct.
That being said, I don't think it is wrong for the Second Circuit to have punted the issue, which is precisely what they did. They drew on the logic and reasoning of local government and the District Court and being that there was limited clear cut Constitutional guidance on the issue they upheld the lower court and the local government. So, the Second Circuit panel's decision to punt and agree with the lower court and the local government seems like a reasonable decision, especially if you don't want Appellate Judges making law or being activist. Appellate Court don't really deal with the facts at all, they only look to the law. They have to assume that the lower court and the local government in this instance were closer to the facts of the case and accept their interpretation of those facts as accurate. To do otherwise would cut against their role as an appellate court, and turn them into a secondary trial court. That was not the intention of the framers.
So, I think there is no small amount of irony in conservatives demanding that the Second Circuit, and specifically Sotomayor, be activist and make law just because it is what they (and myself I might add) feel was the logical and reasonable conclusion, if not quite supported by clear Constitutional language, when they will inevitably spend much of her confirmation hearings wringing their hands and worrying that she is an activist judge.
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theexorcist
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Post by theexorcist on Jun 30, 2009 14:52:33 GMT -5
A few things:
1. Confirmation as a Supreme Court justice is a political exercise, not a legal one. Legally correct opinions can become kindling for brutal politics.
2. The case won't have an effect - she was going to get quizzed on this before, and she'll get quizzed on it now. The guy she's replacing voted the same way she did.
3. All signs point to confirmation. It's true that, during confirmation, some media outlet could bring up some tawdry item from her past, or she could answer that, no, the Constitution is not the law of the land since it wasn't passed in the directives laid down by the Ant Men while they were holding back the electric car, but it's not happening.
4. The "activism" thing Cambridge brings up doesn't really work, in my mind.
Here's the conservative view - the initial law violated the theory that all are equal - something which the Constituion and its amendments and quite a few Supreme Court cases tend to emphasize. Laws that violate the Constitution are illegal and should be stricken. That's not activism - that's basic logic. They argue that "activism" comes in when someone makes an argument that "what the Constitution really meant to say was" and then come out with the logic that the University of California should guarantee ten percent of its slots for minorities to make up for perceived racial discrimination. They're not ruling on whether amending racial discrimination in this case is a bad thing - just that it's not legal without a Constitutional amendment. Another example is giving the District two Senators and a Representative without a Constitutional amendment despite the Constitution being pretty clear that only states get them.
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Cambridge
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Post by Cambridge on Jun 30, 2009 17:09:15 GMT -5
A few things: 1. Confirmation as a Supreme Court justice is a political exercise, not a legal one. Legally correct opinions can become kindling for brutal politics. 2. The case won't have an effect - she was going to get quizzed on this before, and she'll get quizzed on it now. The guy she's replacing voted the same way she did. 3. All signs point to confirmation. It's true that, during confirmation, some media outlet could bring up some tawdry item from her past, or she could answer that, no, the Constitution is not the law of the land since it wasn't passed in the directives laid down by the Ant Men while they were holding back the electric car, but it's not happening. 4. The "activism" thing Cambridge brings up doesn't really work, in my mind. Here's the conservative view - the initial law violated the theory that all are equal - something which the Constituion and its amendments and quite a few Supreme Court cases tend to emphasize. Laws that violate the Constitution are illegal and should be stricken. That's not activism - that's basic logic. They argue that "activism" comes in when someone makes an argument that "what the Constitution really meant to say was" and then come out with the logic that the University of California should guarantee ten percent of its slots for minorities to make up for perceived racial discrimination. They're not ruling on whether amending racial discrimination in this case is a bad thing - just that it's not legal without a Constitutional amendment. Another example is giving the District two Senators and a Representative without a Constitutional amendment despite the Constitution being pretty clear that only states get them. I don't think you read my actual opinion on the underlying matter at all. My only disagreement is with your assertion that the Constitution, or the law for that matter is so clear cut on this issue. You can say it is clear all you want, but there are so many decisions, so many statutory convulsions, so much judicial rhetoric clouding this issue by so many well-intentioned people, that I fail to see how it is a "simple" issue. You can keep hammering away at the text of the Constitution all you want - "it says EQUAL!!!" - however, the very idea of what is "equal" has perplexed this nation for over 200 years. What the court has stumbled into here is the distinction between disparate impact and intent. It is clear the test was not intentionally discriminatory; it was designed to treat all takers equally. What is at issue, however, is whether there was a disparate impact; i.e. whether the test was unintentionally unfair, thus unequal. Now, as I stated above, I don't believe the test was unfair. In fact, I'm pretty sure it was fair and equal, but that is not to say that this area of law is "simple." Therefore, I believe it was the right thing to do to pass it up to the Court and allow them to try and prune and shape some very convoluted law. As for your claim "it's basic logic," well, unfortunately in the law, and especially in the realm of constitutional law, logic is a fleeting and illusive prey - a snow leopard of sorts. My initial post spoke to a similar frustration with that fact. I too am frustrated by constitutional law, as I find it to be the best proving ground for the road to ruin is paved by the best of intentions. My point was to point out the irony that New Haven in trying to avoid a Title VII suit by refusing to certify the exam results - which was a likely outcome of certification - was slapped by a Title VII suit for refusing to certify the exam results. From a dyslexic firefighter no less. Who saw that coming? New Haven was caught between a rock and a hard place politically and they made an illogical, but understandable decision. Unfortunately, this negatively impacted a few individuals. Those individuals claim this negative impact merited a Title VII claim? I'm dubious. As it was precisely a fear of such a claim that caused New Haven to act as it did. |
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GIGAFAN99
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Post by GIGAFAN99 on Jun 30, 2009 20:30:57 GMT -5
A few things: 1. Confirmation as a Supreme Court justice is a political exercise, not a legal one. Legally correct opinions can become kindling for brutal politics. 2. The case won't have an effect - she was going to get quizzed on this before, and she'll get quizzed on it now. The guy she's replacing voted the same way she did. 3. All signs point to confirmation. It's true that, during confirmation, some media outlet could bring up some tawdry item from her past, or she could answer that, no, the Constitution is not the law of the land since it wasn't passed in the directives laid down by the Ant Men while they were holding back the electric car, but it's not happening. 4. The "activism" thing Cambridge brings up doesn't really work, in my mind. Here's the conservative view - the initial law violated the theory that all are equal - something which the Constituion and its amendments and quite a few Supreme Court cases tend to emphasize. Laws that violate the Constitution are illegal and should be stricken. That's not activism - that's basic logic. They argue that "activism" comes in when someone makes an argument that "what the Constitution really meant to say was" and then come out with the logic that the University of California should guarantee ten percent of its slots for minorities to make up for perceived racial discrimination. They're not ruling on whether amending racial discrimination in this case is a bad thing - just that it's not legal without a Constitutional amendment. Another example is giving the District two Senators and a Representative without a Constitutional amendment despite the Constitution being pretty clear that only states get them. I don't think you read my actual opinion on the underlying matter at all. My only disagreement is with your assertion that the Constitution, or the law for that matter is so clear cut on this issue. You can say it is clear all you want, but there are so many decisions, so many statutory convulsions, so much judicial rhetoric clouding this issue by so many well-intentioned people, that I fail to see how it is a "simple" issue. You can keep hammering away at the text of the Constitution all you want - "it says EQUAL!!!" - however, the very idea of what is "equal" has perplexed this nation for over 200 years. What the court has stumbled into here is the distinction between disparate impact and intent. It is clear the test was not intentionally discriminatory; it was designed to treat all takers equally. What is at issue, however, is whether there was a disparate impact; i.e. whether the test was unintentionally unfair, thus unequal. Now, as I stated above, I don't believe the test was unfair. In fact, I'm pretty sure it was fair and equal, but that is not to say that this area of law is "simple." Therefore, I believe it was the right thing to do to pass it up to the Court and allow them to try and prune and shape some very convoluted law. As for your claim "it's basic logic," well, unfortunately in the law, and especially in the realm of constitutional law, logic is a fleeting and illusive prey - a snow leopard of sorts. My initial post spoke to a similar frustration with that fact. I too am frustrated by constitutional law, as I find it to be the best proving ground for the road to ruin is paved by the best of intentions. My point was to point out the irony that New Haven in trying to avoid a Title VII suit by refusing to certify the exam results - which was a likely outcome of certification - was slapped by a Title VII suit for refusing to certify the exam results. From a dyslexic firefighter no less. Who saw that coming? New Haven was caught between a rock and a hard place politically and they made an illogical, but understandable decision. Unfortunately, this negatively impacted a few individuals. Those individuals claim this negative impact merited a Title VII claim? I'm dubious. As it was precisely a fear of such a claim that caused New Haven to act as it did. Then don't have title VII. Controversial? Sure. A different set of issues? Of course. But maybe the best option. And nobody likes to say it. |
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Cambridge
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Post by Cambridge on Jun 30, 2009 21:50:27 GMT -5
I don't think you read my actual opinion on the underlying matter at all. My only disagreement is with your assertion that the Constitution, or the law for that matter is so clear cut on this issue. You can say it is clear all you want, but there are so many decisions, so many statutory convulsions, so much judicial rhetoric clouding this issue by so many well-intentioned people, that I fail to see how it is a "simple" issue. You can keep hammering away at the text of the Constitution all you want - "it says EQUAL!!!" - however, the very idea of what is "equal" has perplexed this nation for over 200 years. What the court has stumbled into here is the distinction between disparate impact and intent. It is clear the test was not intentionally discriminatory; it was designed to treat all takers equally. What is at issue, however, is whether there was a disparate impact; i.e. whether the test was unintentionally unfair, thus unequal. Now, as I stated above, I don't believe the test was unfair. In fact, I'm pretty sure it was fair and equal, but that is not to say that this area of law is "simple." Therefore, I believe it was the right thing to do to pass it up to the Court and allow them to try and prune and shape some very convoluted law. As for your claim "it's basic logic," well, unfortunately in the law, and especially in the realm of constitutional law, logic is a fleeting and illusive prey - a snow leopard of sorts. My initial post spoke to a similar frustration with that fact. I too am frustrated by constitutional law, as I find it to be the best proving ground for the road to ruin is paved by the best of intentions. My point was to point out the irony that New Haven in trying to avoid a Title VII suit by refusing to certify the exam results - which was a likely outcome of certification - was slapped by a Title VII suit for refusing to certify the exam results. From a dyslexic firefighter no less. Who saw that coming? New Haven was caught between a rock and a hard place politically and they made an illogical, but understandable decision. Unfortunately, this negatively impacted a few individuals. Those individuals claim this negative impact merited a Title VII claim? I'm dubious. As it was precisely a fear of such a claim that caused New Haven to act as it did. Then don't have title VII. Controversial? Sure. A different set of issues? Of course. But maybe the best option. And nobody likes to say it. As you may have noticed, I don't necessarily disagree with you. |
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Post by AustinHoya03 on Jun 30, 2009 23:34:18 GMT -5
Then don't have title VII. Controversial? Sure. A different set of issues? Of course. But maybe the best option. And nobody likes to say it. I haven't read all of Kennedy's opinion in Ricci yet -- is this a subtext of the opinion at all? I'm just wondering because the opinion in NW Austin Municipal Utility District is largely being interpreted as a message to the US Congress that it needs to amend the Voting Rights Act before the Court starts finding some of its provisions unconstitutional. I would not be surprised if the Court gave the Congress another hint WRT another statute dealing with race. The question of course is -- will a Democratic legislature make such legislative changes? If not, there could be some real showdowns between Congress and the Court on race legislation in the years to come. |
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EasyEd
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Post by EasyEd on Jul 1, 2009 10:51:39 GMT -5
"I don't think you read my actual opinion on the underlying matter at all. My only disagreement is with your assertion that the Constitution, or the law for that matter is so clear cut on this issue. You can say it is clear all you want, but there are so many decisions, so many statutory convulsions, so much judicial rhetoric clouding this issue by so many well-intentioned people, that I fail to see how it is a "simple" issue. You can keep hammering away at the text of the Constitution all you want - "it says EQUAL!!!" - however, the very idea of what is "equal" has perplexed this nation for over 200 years."
You shall not discriminate on the basis of race. Only a lawyer could say it does not say you can't discriminate on the basis of race.
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