Sotomayor nomination
 

Obama picks Sotomayor for Supreme Court
She seems like a good fit in what he wants to do and the direction of the court as he sees it.

Media is annoying with this. Of course judges with different backgrounds are going to come up with different solutions and viewpoints. The justice system was designed NOT to be objective.

Were you around for the Thomas nomination? I forget how old you are.

Policy is not made in a courtroom.

Better for who?

Not to be objective? Who said that - Karl Marx? On the contrary, it was designed to provide "Equal Justice Under Law" as personified by:

http://www.themisintl.com/graphics/themis3.jpg

Quote:

Themis, the Goddess of Justice who since Roman times has reined as the foremost personification of virtue and justice, representing both impartiality and power. Her blindfolding, which dates to the 16th century, shows that her justice is fair and not subject to influence.

I was alive but not aware of it.

I don't think this was an meant to be an absolute statement. In certain situations, a rich experienced latina lady can understand motives better then a rich white male who has no experience in certain situations. In other situations, it may be the opposite. That is why I agree that diversity is important in the Supreme Court and believe that law isn't meant to be objective, because it cannot be.

Every person has grown up in different environments and has a different outlook on life meaning they can relate and understand different situations better then others. Having diverse viewpoints is important to create a well rounded view on a topic, instead of specific one that will most likely happen if one demographic group dominates the Supreme Court.

I haven't read Karl Marx. Whether he said it or not does not matter because interpretation is ALWAYS subjective.

While true, it is not a justification of or an endorsement of subjectivity. Subjectivity is a shortcoming that must be overcome in order to provide fairness.

You are equating subjectivity to fairness. Subjectivity is objectivity compromised by bias - any bias - the bias of an ignorant, rich white guy (9 ignorant, rich white guys passed the civil rights act, by the way) ruling on the plight of migrant farm workers or the bias of a Latino woman who may be called upon to rule on an anti-trust case.

I agree that no one on the court is free from bias. I do not agree that subjectivity is a goal of the judicial system. The judicial system strives for the unattainable goal of being free of bias and subjectivity.

Its up to the prosecutor and the defense attorney to make the judges aware of and sympathetic to the unique circumstances of each case. Its up to the judges to apply the law without regard to their personal agendas and beliefs. If the judges are the ones supplying the subjectivity then neither side needs a lawyer.

I am not equating subjectivity to fairness. Subjectivity can be fair or unfair, depending on the person and situation. What I am arguing is that since morals are subjective, it is up to the judges to determine which subjective solution should be used.

This is not a great analogy but take this example. Lets say someone wrote a book two hundred years ago arguing why every law should be followed, including slavery. If this book is read today, it could equally be interpreted that slavery is legitimate and illegitimate depending on whether you follow the message of the book that every law should be followed (slavery is illegal today and therefore illegitimate) or follow the direct quotations of the book that slavery benefits society and law (slavery should be legitimate). It is up the lawyers to present both sides and up to the judge to determine which side is "correct".

That is what I mean about interpretation being subjective. A law or moral code cannot absolutely apply to every situation and therefore it is up to the judge to determine where it should and should not apply. It will not and can not be fair.


I'm assuming you are saying that just because Sotomayor has a different viewpoint it does not justify her being appointed to the Supreme Court? If so, then what should it be based on (besides the obvious qualifications). I'm sure the majority of Supreme Court justices have been put on for some sort of agenda and I don't see how this is any different.

I'm debating the merits of objectivity over subjectivity.

My problem isn't Sotomayer. Its the ridiculous reasons being offered for her nomination. For all I know she'll be a fantastic judge - or a lousy one - who knows.

The idea that a judge should be nominated because she is presumed to be subjective is nuts. Why don't we nominate an Islamic judge - they would surely bring a unique subjectivity to the court. Why not a Russian judge - or a Chinese judge - or an African judge; not an African American - an actual African.

On second thought, let's nominate a judge who represents the fastest growing segment of the voting public and cash in our chips in November. Then let's pretend that's not why we nominated her.

Since it was pre-ordained that we were going to get a female Latino judge shoved down our throat regardless of her qualifications, I'm actually kind of relieved that they seem to have found one who, by sheer coincidence, seems pretty qualified.

To answer your question, yes, the reasoning is bullshit. Of course Obama picked her because of political reasons but that does not make the diversity argument obsolete. If someone is going to be picked on political reasons, I would rather see different logical viewpoints represented instead of the same privileged ones.

But you did not answer my question. What should the selection be based on? There are more than enough qualified people to become Supreme Court Justices so the selection has to be based on an aspect other than qualifications. What makes the section of Sotomayor any different then Bush's conservative picks? I am guessing a bullshit reasoning can be found for just about every pick.


I haven't followed this real closely but what I also want to know is why is Sotomayor's appointment so controversial when I have never heard anything from any other appointees in the past?



Edit - This is just another example of political slander. Obama is attempting to deceive people with the reasoning for his picks because of politics and Sotomayor is being attacked for poltical reasons by attempting to make her seem racist and sexist by taking quotes out of context to make a non-absolute statement seem absolute.

Yup - I think she will do just fine, thankfully. Then again she is only 54 and could potentially be there for 30 years....
This is not a very controversial situation. In fact she should cruise right through the process.
Nah - she hasn't been attacked that much. This is nothing. Thomas and Anita Hill and the Coke can...
thats a whole nother story.

Here too

Her nomination interrupted my stories. I don't like her.

Ignore me, i'm bored at work.

I hated Nixon for the same reason. He'd always come on tv when my shows were scheduled to be on.

Oh, I have just heard a lot of complaining about it recently so I assumed it was pretty controversial.

Complaining? heck that was simple discussion - nah, not at all. I don't think so anyway. Maybe Rushbo will say something stupid (how typical) and rile up a few radicals on either or both sides - thats about it though.
All in all she seems like an equal replacement ideologically speaking. It will keep the court about where it was. Its not like a die-hard conservative is leaving and a hardcore liberal is replacing them - ya know?

Oh yea. He has already said, again, he hopes Obama fails, and he hopes this nomination fails. He is a tool.

She votes with republicans 95% of the time, according to what I heard last night on the news. Granted it is a NY court, still... She is a moderate, not a liberal. I wish he had selected someone more liberal, because the court is swayed far more to the right than the left. It needs to balance out. Hopefully she will turn out to be like Souter. You never can tell though.

About Thomas, there was a huge controversy there because he was accused of sexual harrassment, and I'm still not convinced he was completely innocent.

Just pretend he isn't there and maybe he'll go away. If no one is listening perhaps he'll stop talking.

Interestingly, our "multicultural" world-focused news service here described her simply as "a new nominee, who has type one diabetes" or something. no mention of being female, or hispanic.

So far she sounds ok. I will reserve judgement until I hear more.

I saw a TV clip of one of your pollies (old white guy) saying something like... We need a justice who will make decisions based on facts, not on how they feel....

If anyone gets a chance, please slap the jerk for me, will you?

Will do. Now are ya gonna give me a name, or should I just start slapping until I get the right one?

Sorry, I didn't get his name, you'll just have to slap any pompous, sexist, white republican senator you can. Think of the exercise!

It isn't? Don't court rulings set future policy for the police, the DA's office, for lower courts?

Explicitly not by virtue of the separation of powers. Congress writes the laws, the president enacts laws and the Supreme Court either determines whether or not a law violates the Constitution (e.g., the law banning guns in DC was overturned on Constititional grounds) or it hears/rules on appealed lower court rulings when the Court believes that either the law or the Constitution is not sufficiently clear and hence the guidance of the Court is needed (e.g., is abortion a crime or is it not?). The Supreme Court may also be called upon to resolve legal quandries like determining what to do when, for example, Federal law and state law (or any two laws) directly contradict each other such that a citizen is forced to break one to obey the other.

Interestingly, the Supreme Court frequently hears cases on the basis that the lower court's ruling was not based on prudent and reasonable interpretation of existing law- e.g., the lower court "just made it up." When a court's ruling is "made up" and not based on applying the law as written, its called judicial activism - the court assumes the role of legislator.

The remedy for lower court judicial activism is appeal to a higher court. The remedy for judicial activism at the Supreme Court level is... uh... well... there isn't one. Yep, that's the only weakness of our form of government - there is no built-in remedy for judicial activism at the Supreme Court level. And that is why the question is so important in Supreme Court confirmation hearings.

Almost in as many words, nominees are often asked: Are you going to base your rulings on the law(s) as written or are you going to 'write your own law' then base your ruling on that? Because a) there is really nothing to stop them from doing it and b) there's really not a whole lot anybody can do to fix it if they do.

Yes, I understand all that, but don't their rulings determine future policy for law enforcement? :)

Their rulings help an officer to decide whether or not a law has been broken but the underlying law is no different than it was before the ruling was made. The key word in your question is 'determine.' Not to beat this completely to death but the court does not determine what the law is, it determines whether or not the law applies in a given situation.

Another side to the question involves civil disputes. Let's say you want to build a house on the beach so you buy a lot after determining that the zoning of the parcel permits the construction of single-family residences. Adjacent lots already have houses on them. Then, one day, you learn that the zoning board has rezoned your property such that you are not allowed to build a dwelling on it. You can build a deck but nothing else. Instantly, the value of your parcel drops from $1M to $50k. You sue the government for $950k argueing that the downzoning amounts to a 'taking' under the emminent domain provision of the Constitution. You lose at the local level. You appeal and win at the state level. The state appeals and wins. You appeal to the Supreme Court.

This really happened (in South Carolina). The citizen won and the state was ordered to compensate him as called for in the Constitution.

I thought this specific example might help clarify the intent of the question of the effect of the court's rulings on the determination of policy (as enacted by law).

If the court says the law allows women may go topless on the beach, the police will adopt a policy of not arresting topless women on the beach.
Department policy stems from court rulings.

The law never "allows" it only prohibits. Hence the court cannot say the law allows something; it can only say it is unconstitutional to prohibit something. Police Department policy, therefore, is only concerned with what the law prohibits as written in statutory law. If the court strikes down a law, it is subsequently removed from the statute and whatever was prohibited is no longer prohibited.

Your example necessarily implies that first there was a law in place requiring women to wear no less than bikini tops and second, someone was arrested, charged and convicted for violating that law and third, the convicted person appealed the conviction on the grounds that the law was somehow invalid (unconstitutional, let's say) and the Supreme Court ruled in their favor.

So the court never explicitly said "Hear ye, hear ye - all y'all women folk are hereby allowed to bare it all on the beach", rather, the Court said to the legislators "thou shaltest not enact any law requiring women to wear tops at the beach."

Legislators fill the glass, occasionally the Supreme Court siphons off an ounce or two but the police only care about what's in the glass. So really, police policy takes its direction from the legislators who create the laws. The court only gets involved when a law is unclear or unconstitutional in which case its the legislators who change the body of law to conform to the court's findings. The police never (officially) take their eye off the legislators.

So basically, we start with the Constitution which outlines our rights. Note that the Constitution does not explicitly prohibit the citizens (although it does prohibit the government). Next comes legislators who create law. The government is within its right to prohibit any activity not explicitly granted by the Constitution. Then comes police to enforce the law. Then comes the Supreme Court to (among other things) protect citizens against laws that are against the law.

Note also that the Court does not act until a case is brought before it. So a law could be passed tomorrow making it illegal for me to buy food. The Court is not going to step in and strike down the law. I have to be arrested, convicted and lose every lower court appeal before the High Court will agree to hear the case.

Anyway, this is a fun discussion.

Good stuff B! Do you have a background in law, or are you merely a genius?

Neither but thanks. I was actually hoping Radar would pop in and share his thoughts. Anybody that can quote the Federalist Papers is way outta my league.

Great summary Beestie. One of the best I have seen. eva.

Sounds like policy to me. Policy for the legislators, which is converted into law, and then converted back into policy by the executive.

In addition, most Judicial policy comes from the Appeals courts, as the lower courts aren't strong precedent, and the Supreme Court doesn't take many cases.

The police don't wait for the legislature to change the law. When the court says the law (or part of it) is unconstitutional, the police change their policy immediately. They don't waste time, and resources, arresting people that can't be convicted in court, while the legislature corrects their mistake.

I don't think of it as policy because the what the Court is really doing is saying that the policy coded into law (thou shalt not stand in thy yard after 7:00) prevents citizens from exercising their rights granted them in yet another policy document: the Constitution.

So the Court must first conclude that the law being challenged does, in fact, conflict with the Constitution. Since the Constitution is a document that grants rights, its necessarily non-specific. The law, being prohibitive, is necessarily very specific. So this presents the Court with two questions: Did the law prevent the exercise of Constitutional rights in the facts of the case before it and secondly, could the law conceivably prevent the exercise of Constitutional rights for anyone ever.

By answering those two questions, the Court is merely adding definition and clarity to the law (if poorly written) and to the necessarily vague terms used in the Constitution. And, in the event of a conflict, declaring the law invalid. In a way, its as if the law itself is on trial. Guilt is established if it can be demonstrated that exercising a any Constitutional right would lead to a violation of the law in question.

By answering those questions truthfully, honestly and as objectively as possible, the Court has not created policy.

If, however, the Court rules with bias and subjectivity by not objectively analysing the degree to which the law and Constitution are in conflict, then I have to agree with you that they are making policy via judicial activism. In theory, this should never happen. But judges are just like the rest of us and can only do their best not to be influenced by ideas that originate outside the facts of the case.

Actually, they are ordered to cease enforcement as part of the disposition of the case. That discretion is not left up to the police chief.

So the police are ordered to change their policy by the court?

Sotomayor reversed 60% by high court
on the other hand...
So is it safe to say that the Supreme court agreed with the other 300+ rulings she gave?

I feel obliged to provide an answer with citations and will try to dig some up as I have time and will post again when I can provide a more detailed and substantiated answer.

OK, got the scoop. What happens is the judge issues a injunction against enforcement of the law which effectively bars the police from charging anyone with the crime of violating the newly overturned law. I think in some cases, the injunction is not issued if the judge is assured by the attorney(s) general that enforcement will cease until the law is officially stricken from the books.

But the end result is that judges, usually at the Appellate level, are making policy. As part of their normal, official, and non-"activist" duties. They tell the legislature "Thou shalt not make such a law", and they tell the executive "Thou shalt not enforce such a law", or "Thou art enforcing that law incorrectly". Ideally, they wouldn't make policy, but it is their job to do so because things are not ideal.

And it may be somewhat trivial, but they are actually tasked by law with making real substantive policy pertaining to the court system itself.

See for example Title 28 section 2072 of the United States Code.
An example of the most recent amendments to the Federal Rules ordered by the Supreme Court.

You make a good point. Hence there is no way to control when they are actually making policy as activist judges, all the time trying to convince everyone around them that it is nothing more than non-"activist" duties, when in fact they are filled with bias. If this were not the case we, along with millions of others, would never even be discussing the issue.

Yes we would. Political controversies don't need any factual basis to get millions of people talking about them. Just look at people calling Sotomayor a racist for saying something virtually identical to something Alito said during his hearing.

Noted. But I believe that judical activism is real in both extremes. And I don't support it in either.

I notice that only one side uses the term, and I notice they find some way to apply it to every single nominated judge.

That's one way to look at it. The other thing that happens (as I understand it) is that a judge is bound by current law to rule a certain way on a case; the SCOTUS is the only authority that can then say the law itself is flawed. I'd be interested to read details of those particular cases that were overruled.

A 50% reversal rate is normal so its not a stretch to say 40% - 60% is within reasonable expectations and not cause for alarm.

Recall that only appealed cases can be overturned so its already a skewed sample set.

A more informative figure would be # of reversals to total number of rulings.

And even that would be a little misleading because many reversals result from appeals where the defense realizes they screwed up and do a better job the 2nd time.

I have heard it used for judges whom were thought to oppose abortion.

I'll take Sotomayor any day over worthless scumbags like Roberts, Alito, Thomas, and Scalia.

Roberts hasn't been so bad.

Thomas just sleeps all day.

Alito and Scalia are scum, though, right to the bone.

Roberts hasn't been that bad....yet. He hasn't had much time to be that way yet. But the 4 I mentioned always vote together....the wrong way.