Sotomayor nomination

[Happy Monkey]

Originally Posted by Beestie

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."

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.

[xoxoxoBruce]

Originally Posted by Beestie

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.

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.

[Beestie]

Originally Posted by Happy Monkey

Sounds like policy to me.

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.

[Beestie]

Originally Posted by xoxoxoBruce

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.

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.

[Happy Monkey]

Originally Posted by Beestie

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?

[classicman]

Sotomayor reversed 60% by high court

With Judge Sonia Sotomayor already facing questions over her 60 percent reversal rate, the Supreme Court could dump another problem into her lap next month if, as many legal analysts predict, the court overturns one of her rulings upholding a race-based employment decision.

Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.

"Her high reversal rate alone should be enough for us to pause and take a good look at her record. Frankly, it is the Senates duty to do so," said Wendy Wright, president of Concerned Women for America.

on the other hand...

Judge Sotomayor already has been confirmed for the federal bench twice: unanimously in 1992, when President George H.W. Bush nominated her to a district court, and by a vote of 67-29 in 1998, after President Clinton nominated her to the appeals court. Seven Republicans who voted for her in 1997 are still in the Senate, and White House press secretary Robert Gibbs said "they're certainly well positioned to support her again."

Mr. Gibbs dismissed questions about Judge Sotomayor's reversal rate, saying she wrote 380 majority opinions during her 11 years on the appeals court. Of those 380 opinions, the Supreme Court heard five of the cases and overturned her on three.

So is it safe to say that the Supreme court agreed with the other 300+ rulings she gave?

[Beestie]

Originally Posted by Happy Monkey

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

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.

[Beestie]

Originally Posted by Happy Monkey

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

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.

[Happy Monkey]

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.

[glatt]

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.

The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.

An example of the most recent amendments to the Federal Rules ordered by the Supreme Court.

[TheMercenary]

Originally Posted by Happy Monkey

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.

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.

[Happy Monkey]

Originally Posted by TheMercenary

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.

[TheMercenary]

Originally Posted by Happy Monkey

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.

[Undertoad]

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

[Pie]

Originally Posted by classicman

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

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.