[excon]

Hello:

She's everything the president and I wanted - and empathetic too.

She WILL be confirmed. It's just a matter of how much the right wants to embarrass itself.

excon

[tomder55]

Have not done much research on her yet but this comment stands out .

“All of the legal defense funds out there—they’re looking for people with court of appeals experience. Because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don’t make law. [Laughs] I know. I know. [Laughter] I’m not promoting it, I’m not advocating it, I’m…y’know.”

YouTube - Judge Sonia Sotomayor: Court is Where Policy is Made

I know that is not what the founders intended for the court. Her attitude is almost classic textbook definition of judicial activism .

[ScottGem]

I know that is not what the founders intended for the court. Her attitude is almost classic textbook definition of judicial activism .

The doctrine of judicial review was in the constitutions of at least 5 of the original 13 states. Its also considered an implied power of the Judicial branch affirmed with Marbury vs Madison in 1803. So I doubt if you can say its not what the Founding Father intended.

P.S. excon beat you to it with a thread about Sotomayor, so I merged them.

[speechlesstx]

She also said, "we educated, privileged lawyers have a professional and moral duty to represent the underrepresented in our society, to ensure that justice exists for all, both legal and economic justice."

I've wondered what economic justice means and thankfully, the Center For Economic and Social Justice defines the purpose of "economic justice."

"The ultimate purpose of economic justice is to free each person to engage creatively in the unlimited work beyond economics, that of the mind and the spirit."

Huh?

[tomder55]

The case that stands out ;which is being reviewed by SCOTUS now is the New Haven Firefighter's reverse discrimination case(Ricci v. DeStefano ) http://www.scotuswiki.com/index.php?title=Ricci%2C_et_al._v._DeStefano%2C_et _al.

A panel of the 2nd Circus Court of Appeals ,including Sotomayor, ruled against the plainiffs . Judge Cabranes, a Clintoon appointee objected to the panel's opinion that contained “no reference whatsoever to the constitutional issues at the core of this case.” SCOTUS has already ruled against reverse discrimination in similar cases like Washington v. Davis.

[tomder55]

Scott There is a strong argument that says Marberry was a power grab by the judiciary. The only reason it stands is that the other branches have not challenged it. I like the response that Andrew Jackson had to the imperial judiciary .
"John Marshall has made his decision, now let him enforce it!"

[excon]

I know that is not what the founders intended for the court. Her attitude is almost classic textbook definition of judicial activism .

Hello tom:

(snicker) (giggle)... Ahem... You can actually say that with a straight face (assuming I could SEE your face).

Ok. If we're going to get it on about judicial activism, let's GO.

You righty's are as ACTIVIST as you get. Where in your right wing strict constructionist Constitution, does it say that black people are only 3/5ths of white men? In Dred Scott v. Sandford (1857), the right wing Court concluded that, be they slave or free, Blacks were a "subordinate and inferior class of beings" without constitutional rights.

Of course, you CAN'T find that crap in the Constitution. They made it up, and they continue to do so.

excon

[tomder55]

Dred Scott was absolutely wrongly decided and proof of what I am talking about. Had SCOTUS not interfered in Dredd Scott there is a good chance the Civil War would not have been fought. I will go further... Plessy was also wrongly decided and was corrected by Brown v Board of Education. I am not arguing this on a left v right basis.

By the way ;the 3/5th compromise was in the Constitution but was reversed by amendment... the only proper way to change the Constitution... not by judicial fiat.

[excon]

Hello again, tom:

Ok, then let's stop with the left and right issues... I simply suggest that when the right say's "strict constructionalist", it's code for a person who has empathy for the right.

You don't, and you wouldn't make the suggestion that only liberals have empathy, would you?? Because if you did, I'd snicker some more...

excon

[tomder55]

I am interested in judges interpreting the law ;not making feelings judgement .

Jefferson on judicial activism and judicial review :

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."

"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. "

"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

[tomder55]

I simply suggest that when the right say's "strict constructionalist", it's code for a person who has empathy for the right.

I do not use that term .I prefer originalist . I do not want judges making legislation.

[tomder55]

Here is Sotomayor's idea of empathy .

“I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

In other words a white male could not possibly fairly rule on a case involving a Hispanic. This is the best Obama could come up with ?

[galveston]

Justice has been portrayed as a woman wearing a blindfold. Justice is supposed to be impartial, not emphathetic.

Sonia wants to take off the blindfold and has said as much.

[speechlesstx]

David Frum has an interesting take on Sotomayor as a Supreme...

OBNOXIOUS... BUT IN A GOOD WAY?
Tuesday, May 26, 2009 7:57 AM

On the other hand, here's the possible good news in the Sotomayor nomination. A conservative legalist friend notes that the all-important 5th vote on the Supreme Court is Justice Anthony Kennedy's. The Reagan-appointed Kennedy has drifted to the left in recent years - in part (it's gossiped) because of his negative reactions to the brilliant but sometimes acerbic Antonin Scalia.

Having lost in 2008, Republicans had no hope of a conservative or even a moderate judicial nominee. What we should therefore be hoping for, my friend continues, is the most personally obnoxious liberal, someone certain to offend and irritate Kennedy - and push him careening back rightward. For this reason, the politic Elena Kagan would be the very worst pick from a conservative point of view. As dean of Harvard Law School, she proved herself adept at wooing conservative support. By contrast, if Jeffrey Rosen's reporting is correct, Sotomayor was almost unanimously disliked by her colleagues on the Second Circuit and even more by their clerks. And she's unlikely to gain humility from this latest promotion... so who could be better?

[tomder55]

David Frum is part of the Republican movement that wants to redefine the "Republican brand" as Democrats lite. (David Gergen is also in that group)http://ac360.blogs.cnn.com/2009/05/26/one-of-obama%E2%80%99s-finest-hours/
Frum is buying into the Obama strategery that a Republican fight against the Sotomayor nomination will be viewed as Republican racism against a growing identity group.

However ,I had expected Kagan to be the nominee because of the reason Frum describes. She is actually more liberal than Sotomayer and by all accounts would've been formidable in a debate .But she is already Solicitor General .

Sotomayor by contrast dismissed the Ricci case with a single paragraph of no substance "that lacked a clear statement of either the claims raised by the plaintiffs or the issues on appeal" and "no reference whatsoever to the constitutional claims at the core of this case." after a review of 1800 pages of testimony and over an hour of oral arguments according to fellow Clintoon appointee Jose Cabranes .
Here is the decision in it's totality :

PER CURIAM:

We withdraw our Summary Order of February 15, 2008. Ricci v. DeStefano, 2008 U.S.

App. LEXIS 3293, 2008 WL 410436 (2d Cir. Feb. 15, 2008).

Plaintiffs appeal from a judgment of the United States District Court for the District of Connecticut (Arterton, J.) granting the defendants' motion for summary judgment on all counts.

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D. Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

CONCLUSION

The judgment of the district court is AFFIRMED.

Perhaps Frum is right that she is a light weight. Perhaps she is Obama's Harriet Miers,and Kagan will be the real nominee after the Republicans trash the hispanic nominee ;further strengthening the Democat hold on them( although it did not seem to matter much that the Dems were free to trash Alberto Gonzalez and blocking Miguel Estrada's nomination to the Court of Appeals for the D.C. Circus )

I read Rosen's article yesterday. Since it is full of unidentified sources I will defer opinion until some of these sources goes public in Senate testimony. I wonder if there is an Anita Hill in the group ?Rosen did a quick retreat today
http://blogs.tnr.com/tnr/blogs/the_p...omination.aspx

More Jefferson about the power of SCOTUS:

"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt."
Thomas Jefferson

[excon]

Hello again, tom:

Rosen NOW say's: "Instead, the strongest case to be made for Sotomayor is the idea that the range of her experience--as a trial judge, appellate judge, and commercial litigator--might give her the humility to recognize that courts participate in a dialogue with the political branches when it comes to defining constitutional rights, rather than having the last word."

If one has to "dialogue" with a politician before one comes up with their "strict" interpretation of the Constitution, it would seem Rosen wants the candidate to be more empathetic to the political view...

To me, that would look like activism. But, that's just me.

excon

[excon]

Hello again, tom:

Yesterday, the Supreme Court rolled back limits on questioning of suspects... Scalia writing for the majority said the previous ruling was overturned because its "marginal benefits are dwarfed by its substantial costs" in that some guilty defendants go free.

I don't know. I read the Bill of Rights. I don't find anything in there about "costs and/or benefits". He made it up out of whole cloth. In fact, this ruling is judicial activism on steroids!

You don't think so, of course, because the empathy Scalia and the right wingers have is for the COPS!!

The truth of the matter is, that our Constitution was designed to protect the rights of EVERYBODY. Inherent in that truth, is the realization that in order to accomplish that, a few guilty people will go free. It's a cost the founders were willing to undergo. I agree with them. Scalia doesn't. He's wrong.

A further fact. The idea embedded in the above paragraph is the BEDROCK and the FOUNDATION on which our freedoms lie. Scalia doesn't agree. He's wrong.

excon

[tomder55]

It is interesting that Solicitor General Elana Kagan;who was also on Obama's short list of potential nominees discussed above;also called for an overruling of the Jackson decision and was one of the authors of the amicus for the government .Presumably Obama also favored it's reversal.
http://www.scotusblog.com/wp/wp-cont...jo-4-14-09.pdf


The theory was that Kagan would be better able to take on Scalia in a debate on the bench. But it appears they might be natual allies... at least on issues regarding 6th Amendment rights.

Scalia's argument makes sense when you also factor in the 10th amendment .

Louisiana automatically appointed defense counsel to defendant Montejo and then told him that his failure to accept it means he's rejecting his rights under Michigan v Jackson .The court said that the Jackson decision doesn't work because different states have different systems and the states can decide if a defendant must affirmatively accept counsel or not.

This is a very narrow ruling that in no way denies the defendant 6th Amendment protections.

[tomder55]

Rosen NOW say's: "Instead, the strongest case to be made for Sotomayor is the idea that the range of her experience--as a trial judge, appellate judge, and commercial litigator--might give her the humility to recognize that courts participate in a dialogue with the political branches when it comes to defining constitutional rights, rather than having the last word."

If one has to "dialogue" with a politician before one comes up with their "strict" interpretation of the Constitution, it would seem Rosen wants the candidate to be more empathetic to the political view...

To me, that would look like activism. But, that's just me.

I think he was referring to separation of powers . The problem with the court is they think they have the power to be the final arbitrator of the Constitution. That to me is activism.

Again... I do not adhere to "strict" interpretation .I believe in 'judicial restraint' and 'originalism'.
Judicial Restraint is simply the theory that law and policy is not made from the bench (word to Sotomayor ).

Originalism is not applying the law to a strict text ,but to what the original intent of the law was at the time of the writing. It requires more than just the textual reading ,but it also has to be put in context .That would mean a reading of the supporting documents like the Federalist papers and the writing of the founders. Also when reading the amendments the original intent can also be found in the debates that created the amendment.Originalism allows for reasonable interpretation ;strict construction does not.

[cmeeks]

She is a Neo-Communist activist bent on destroying our legal system, free market economy and the moral and traditional fabric that weave our country together sad day indeed