I heard on the radio that Ruth Bader Ginsberg has announce that she has pancreatic cancer.

Wait, have multiple media sources confirmed this?

CNN is talking about it

I saw this too. Unfortunately for her the prognosis doesn't look good at all.

The five-year relative pancreatic cancer survival rates by race and sex were:


* 4.7 percent for white men
* 4.2 percent for white women
* 2.9 percent for African American men
* 5.6 percent for African American women.


Pancreatic Cancer Survival Rates Based on Stage
The pancreatic cancer stage plays a role in the pancreatic cancer prognosis (see Stages of Pancreatic Cancer). Based on historical data:


* 7 percent of pancreas cancer cases are diagnosed while the cancer is still confined to the primary site (localized stage)



* 26 percent of pancreas cancer cases are diagnosed after the cancer has spread to regional lymph nodes or directly beyond the primary site



* 52 percent of pancreatic cancer cases are diagnosed after the cancer has already metastasized (distant stage)



* 14 percent of pancreatic cancer cases had staging information that was unknown.


The corresponding five-year relative pancreatic cancer survival rates were:


* 16.4 percent for localized
* 7.0 percent for regional
* 1.8 percent for distant
* 4.3 percent for unstaged.

I don't think his replacement will be as liberal as most think. They'll certainly be pro-choice but I think they'll be more moderate in their other views.

SCOTUS Press Release:

<TABLE cellSpacing=0 cellPadding=0><TBODY><TR vAlign=top><TD width=370>FOR IMMEDIATE RELEASE</TD><TD width=230>For Further Information Contact:</TD></TR><TR vAlign=top><TD width=410>February 5, 2009</TD><TD width=190>Kathy Arberg 202-479-3050</TD></TR></TBODY></TABLE>


U. S. Supreme Court Justice Ruth Bader Ginsburg had surgery for an apparently early-stage pancreatic cancer today, at the Memorial Sloan-Kettering Cancer Center in New York City. According to Dr. Murray Brennan, the attending surgeon, Justice Ginsburg will likely remain in the hospital approximately 7-10 days.

Justice Ginsburg had no symptoms prior to the incidental discovery of the lesion during a routine annual check-up in late January at the National Institutes of Health in Bethesda, Maryland. A Computerized Axial Tomography (CAT) Scan revealed a small tumor, approximately 1 cm across, in the center of the pancreas.

Justice Ginsburg is 75 years old. She was appointed to the Court in 1993 by President Clinton.
<!-- InstanceEndEditable -->

Pancreatic cancer really sucks :(. Hope its not too painful for Justice Ginsberg.

For someone like myself who is admittedly ignorant about politics and the judicial system...it seems like whenever the Supreme Court is brought up, it's in reference to abortion. What are the other issues that are up for debate/could be swung by Presidential appointment outside of pro-life/pro-choice which tends to side with party lines?

Appreciate it, and if my question isn't clear I can hopefully rephrase.

Obama has indicated that he does not think that the courts are the place to move social policy, so I could easily see him appointing a moderate liberal.

That said, he was a liberal con law professor, so he might very well have some dark horses in mind that won't be on anyone's short list and who might be pretty far to the left.

If he has to replace someone quickly, he won't really have a deep bench on the courts of appeal--at least not if he is looking for someone young. The last 8 years of appointments have been, of course, Bush's, so very few, if any, of them would be (pardon the pun) appealing.

Finally, his pick for SG has never argued in front of the Supreme Court before, so he is not adverse to picking qualified people outside of the box. One may want to look at various governors or senators with the requsite legal minds if one is thinking outside of the box.

For someone like myself who is admittedly ignorant about politics and the judicial system...it seems like whenever the Supreme Court is brought up, it's in reference to abortion. What are the other issues that are up for debate/could be swung by Presidential appointment outside of pro-life/pro-choice which tends to side with party lines?

Appreciate it, and if my question isn't clear I can hopefully rephrase.

Free speech issues, privacy issues, and even gun issues can come up for debate.

Take porn for instance. The government could charge a couple who makes sex videos with obscenity. Now a liberal judge would site with the couple and say it's free speech. A conservative judge would site with the government and say that the constitution says nothing about having a right to make sex videos.

For someone like myself who is admittedly ignorant about politics and the judicial system...it seems like whenever the Supreme Court is brought up, it's in reference to abortion. What are the other issues that are up for debate/could be swung by Presidential appointment outside of pro-life/pro-choice which tends to side with party lines?

Appreciate it, and if my question isn't clear I can hopefully rephrase.

In terms of very high profile things, I could see various war on terror issues being affected. Everything from can W and co. get immunity for any prosecutions for war crimes (though I think that Obama has no interest in going after them) to what kinds of rights (if any) should be afforded to suspects in terror prosecutions.

I also, personally, think that the death penalty is not going anywhere, but it would not shock me a ton if a left turn by the Court abolished it.

In terms of lower profile stuff, federal sentencing law is in a state of pretty extreme flux right now--though the conservative wing of the court is taking the more "defendant friendly" position on those issues, so it may not break down quite as easily into liberal/conservative as the abortion discussion. See, e.g., United States v. Booker - Wikipedia, the free encyclopedia (http://en.wikipedia.org/wiki/United_States_v._Booker)

Other issues that seem close right now include federalism issues (i.e. states rights), the Constitutionality of the various aggressive methods being employed against sex offenders (civil commitment, residency restrictions, etc.), and qualified immunity issues (i.e. how hard or easy should it be to sue the police when they violate your civil rights).

Also, some of these things don't become apparent until the Court has the votes in place. In the mid-90s, the Court went on a mini-State's Rights run, but did not really give much hint of that until it happened.

Free speech issues, privacy issues, and even gun issues can come up for debate.

Take porn for instance. The government could charge a couple who makes sex videos with obscenity. Now a liberal judge would site with the couple and say it's free speech. A conservative judge would site with the government and say that the constitution says nothing about having a right to make sex videos.

what if it's a HS teacher and a student and the video is made on a cell phone cam and uploaded to Facebook? What.

what if it's a HS teacher and a student and the video is made on a cell phone cam and uploaded to Facebook? What.

Is the student underage?

what if it's a HS teacher and a student and the video is made on a cell phone cam and uploaded to Facebook? What.
Is the teacher hot?

yes and yes

For someone like myself who is admittedly ignorant about politics and the judicial system...it seems like whenever the Supreme Court is brought up, it's in reference to abortion. What are the other issues that are up for debate/could be swung by Presidential appointment outside of pro-life/pro-choice which tends to side with party lines?

Appreciate it, and if my question isn't clear I can hopefully rephrase.

I would expect someone fairly liberal if it's a replacement for Ginsburg. There's sort of an unwritten code that Dems replace libs with libs and conservatives with moderates and Reps replace conservatives with conservatives and liberals with moderates.

Pancreatic Cancer is so fatal because it is usually asymptomatic until it is much too late to beat. If her cancer was truly caught on a routine annual CT scan (gotta love that level of health insurance) and is truly in the early stages, her chances should be relatively good for survival.

Other issues that seem close right now include federalism issues (i.e. states rights), the Constitutionality of the various aggressive methods being employed against sex offenders (civil commitment, residency restrictions, etc.), and qualified immunity issues (i.e. how hard or easy should it be to sue the police when they violate your civil rights).

Federalism would be interesting. Think there's a chance that any window opened by Morrison/Lopez would be completely slammed shut by the addition of Obama appointees?

Not sure about Obama's leaning on this issue one way or another.

And now we know why Obama went with Hillary on the SoS job, in order to avoid having to deal with her wanting an SC nomination.

Pancreatic cancer really sucks :(. Hope its not too painful for Justice Ginsberg.

+1

I hate cancer so much.

Pancreatic Cancer is so fatal because it is usually asymptomatic until it is much too late to beat. If her cancer was truly caught on a routine annual CT scan (gotta love that level of health insurance) and is truly in the early stages, her chances should be relatively good for survival.



what are you like...a real doctor?? :confused:


:lol:

what are you like...a doctor?? :confused:
:lol:

Oddly enough, I knew that too. It's the same sort of thing with another sort of cancer that I've had to become familiar with because of work (thankfully not because of any more personal experiences).

Does this mean I could play EF on TV? Or only that I can stay at a Holiday Inn Express under his name?

Oddly enough, I knew that too. It's the same sort of thing with another sort of cancer that I've had to become familiar with because of work (thankfully not because of any more personal experiences).

Does this mean I could play EF on TV? Or only that I can stay at a Holiday Inn Express under his name?

lol - go with the holiday inn express!

i was just messing around...i suppose it's not that uncommon-knowledge or anything, but I just felt like cracking a lil joke to make myself laugh.

Nobody puts EF in the corner.

Pancreatic cancer is what my mom had. For Justice Ginsberg's sake, I really hope they were able to catch it early.

Nobody puts EF in the corner.

lil too much dirty-dancing? or was it too many episodes of "The Pickup Artist" and watching the black-haired kid use that as his pickup line again and again.

Don't fuck with EF27. He's a psych doc. He can send you PMs all night, and by the morning, you will have swallowed your tounge like Miggs in Silence of the Lambs.

i miss my shrink. he pretty much abandoned me. asshat.

Last I saw him was like...a couple years ago. Right before he left on a trip to Israel. He was like "Okay I'm going to Israel. When I get back we'll setup another appointment - and keep in mind at this point I was on meds (I believe)."

Lo and behold, never heard from the guy again. Not a peep.

i miss my shrink. he pretty much abandoned me. asshat.

It sounds like you have abandonment issues. Why don't you lie down on this couch over here and tell me all about it... ;)

SI

lil too much dirty-dancing? or was it too many episodes of "The Pickup Artist" and watching the black-haired kid use that as his pickup line again and again.

Why can't it be both?

It sounds like you have abandonment issues. Why don't you lie down on this couch over here and tell me all about it... ;)

SI

lol i HAD severe anger management issues - mostly licked now thank god, and i have issues with letting people get close to me ("intimacy issues" - although in the physical sense).

I believe at one point it was "mild clinical depression."

In fact, what I should do, just for giggles, is go home and find the complete nueropsych-profile that I had done on me and post it. It's pretty amusing.

lol i HAD severe anger management issues - mostly licked now thank god, and i have issues with letting people get close to me ("intimacy issues" - although in the physical sense).

I believe at one point it was "mild clinical depression."

In fact, what I should do, just for giggles, is go home and find the complete nueropsych-profile that I had done on me and post it. It's pretty amusing.



Stay tuned for another episode in "As the Torgo Turns..."

Last I saw him was like...a couple years ago. Right before he left on a trip to Israel. He was like "Okay I'm going to Israel. When I get back we'll setup another appointment - and keep in mind at this point I was on meds (I believe)."

Lo and behold, never heard from the guy again. Not a peep.

That would be patient abandonment which is unethical and actionable in some states. Entertaining turn of direction for this thread (besides these last few posts.) Anyway, regardless of politics, I hope for the best for Justice Ginsberg.

Out of curiosity, what's the right move there? A referral?

That would be patient abandonment which is unethical and actionable in some states. Entertaining turn of direction for this thread (besides these last few posts.) Anyway, regardless of politics, I hope for the best for Justice Ginsberg.


oh yeah? Ball could have also been in my court to call him and schedule an appointment and I never did...my memory is a bit hazy. wasn't anything serious as far as medication goes, just 40mg prozac, and i was quite the yo-yo with that anyways, as far as going on and then off (although I know that diluted the effectiveness of it)

In any case though, it was fine by me, because by the end I wasn't receiving any active psychotherapy out of it, it was more just someone to talk to. I'd go in for a half-hour a month and he'd ask me a bunch of questions to make sure I wasn't having side-effects and then we'd talk about what was going on in my life and maybe i'd blow off a little steam, or we'd end up talking about him. It wasn't really providing me with any theraputic-benefits.

good to know though. maybe i should sue and get my payday. my right as an american, right? lol - kidding.

Out of curiosity, what's the right move there? A referral?


oh no. he was just going on vacation. he had a covering-doctor.

Since he didn't come back, a referral (preferably 3 different ones and let the patient choose) is the responsible ethical choice.

Edit: Even if "the ball was in your court", the psychiatrist has a responsibility to call the patient and attempt to schedule an appointment before they just abandon them.

nahhh - i think he came back. Sure seems like he did. He's still workin at the hospital. LOL.

Anyways like I said, I'm not busted-up over it. I feel relatively mentally-healthy so it's all good.

I love the FOFC thread swerves. :D

A family friend of my wife's had pancreatic cancer. This was her second cancer (breat cancer first), and it had (whatever the medical word is) spread through her body including into her stomache and liver. She was in the 5% or less survival rate. That was 5 years ago. She's still alive, active, and cancer free. Somebody has to be in that 5% I guess. She's relatively young (late 30's), so that might help explain it a bit. She's still at a very high risk of having it comeback and be fatal (probably a really really high risk), but this has given her a few more years to be with her family.

Looks like Sonya Sotomayor is the selection..........

Obama to Announce Supreme Court Nominee Tuesday Morning - Presidential Politics | Political News - FOXNews.com (http://www.foxnews.com/politics/2009/05/26/obama-announce-supreme-court-nominee-tuesday-morning)

Looks like Sonya Sotomayor is the selection..........

I think that's off-topic for this thread, to be honest.




:D

It is and it isn't. Sotomayor is the replacement nominee for Souter, but if she wins confirmation, I think you can expect Ginsburg to step down fairly soon. Ginsburg sounded very anxious to have this appointment be a woman, I think to protect against the possibility of an all-male court in the event of her incapacitation.

omg liberal activist judge!!!!111!!

I think that's off-topic for this thread, to be honest.

:D

YOU'RE OFF TOPIC!!!

Sorry, that's all I've got. :D

I don't know much about this candidate outside of the fact that she's female and hispanic, so she fits a couple of 'minority' profiles.

Wasn't she the one who ended the last baseball strike?

Wasn't she the one who ended the last baseball strike?

I thought she ruled in favor of Owl Gore inventing the internets.

Predictable pick. Gives the court a woman and hispanic which it definitely needs. I'm not a fan of forced diversity, but the court is one area where we should have representation from all factions. It's still sad that we will only have 1 female on the court when Ginsberg resigns (considering they make up 50% of the population).

She seems like a moderate liberal which goes in line with what's on the court now from that side of the aisle. I'm assuming that there are probably some liberals out there who are upset that she is not more liberal. The court really hasn't had a hardcore liberal since Marshall. The right side of the court is very conservative.

I think opponents will throw a few stones her way but she'll be confirmed with ease (barring she pays her taxes). Wouldn't be a strong political move to go after a female hispanic. Two voting blocks the Republicans are hurting with. Not to mention the fact that Obama could have gone much more liberal.

And now we get several weeks of "up or down vote" clips.... :D

I also think that the Supreme Court choices in this era are largely overated. For the most part we've fixed a lot of the civil rights issues that plagued our country. The decisions being made now are important, but nothing that changes the entire face of the country. I still hold that abortion is the single most overated issue in our country (as overturning Roe vs Wade would not end abortion).

Supreme Court nominations are more about the show behind the show. A chance for politicians to get on their soapboxes and spout their ideologies. Most of these judges are extremely intelligent and not going to dramatically change our country.

The decisions being made now are important, but nothing that changes the entire face of the country.

I'm sure that's what they all say ;).

I'm sure any potential gay marriage challenges would be big.

And now we get several weeks of "up or down vote" clips.... :D

Ugh. I hope not, but I know better.

I'm sure that's what they all say ;).

I'm sure any potential gay marriage challenges would be big.
Not dramatically big though. We're talking about some tax benefits and small legal benefits which is essentially what government sanctioned marriage is.

This isn't the era of segregation, slavery, and over half the country not being allowed to vote.

Also an acknowledgement that homosexuals are the same as everyone else. A dramatic sea change when you consider less than 10 years ago, in some states, homosexual sex was a crime.

I think most people in the younger generations feel that way. Whether a Supreme Court makes gay marriage legal is not a big issue as I believe in 10-20 years, the people will vote in favor of it.

I just think that issue is much different from other eras. We don't have near riots outside public schools because a gay kid is allowed to attend. We don't have seperate water fountains for homosexuals, nor do we take away their vote and force them to work in the cotton fields all day. I think the current stance on gay marriage is an abomination and disgrace to the country, but I also don't think it comes close in comparision to what we've seen in previous generations.

I think most people in the younger generations feel that way. Whether a Supreme Court makes gay marriage legal is not a big issue as I believe in 10-20 years, the people will vote in favor of it.

I just think that issue is much different from other eras. We don't have near riots outside public schools because a gay kid is allowed to attend. We don't have seperate water fountains for homosexuals, nor do we take away their vote and force them to work in the cotton fields all day. I think the current stance on gay marriage is an abomination and disgrace to the country, but I also don't think it comes close in comparision to what we've seen in previous generations.

I agree.

Sincerely,
Matthew Shepard

I agree.

Sincerely,
Matthew Shepard

Yeah, it was the government that killed him. Or wait, his killers were set free because the prosecutor declined to press charges. Jesus Christ you are a tool.

It was the societal view of homosexuality that did. Government acceptance will go a long way, as did the Government's action on racial civil rights when most weren't willing to accept.

It was the societal view of homosexuality that did. Government acceptance will go a long way, as did the Government's action on racial civil rights when most weren't willing to accept.

So it's up to 9 unelected justices to determine what our "societal view" is? That's one serious job.

Yeah, it was the government that killed him. Or wait, his killers were set free because the prosecutor declined to press charges. Jesus Christ you are a tool.

Hello, I'm the point that just went over your head.

Anyone who assumes that hatred is no longer there because it is well-hidden is underestimating the issue at hand. The hatred may take a different form, but it should not be minimized just because it's not blatently obvious as racism was in the past.

So, other than Washington, who appointed the first eight justices, the record for nominations is William Howard Taft, who got to fill six places in four years. There is an outside chance Obama will get to challenge that record, considering the ages of many of the remaining justices.

They are elected - just not directly. You elected the president that nominated them and you elected the representatives that confirm them. That's what living in a Republic is all about.

They are elected - just not directly. You elected the president that nominated them and you elected the representatives that confirm them. That's what living in a Republic is all about.

So its up to 9 indirectly-elected justices to determine what our "societal view" is?

So it's up to 9 unelected justices to determine what our "societal view" is? That's one serious job.

They've got a lot of power in changing things. Brown v. Board of Education had a dramatic societal impact.

Hello, I'm the point that just went over your head.

Anyone who assumes that hatred is no longer there because it is well-hidden is underestimating the issue at hand. The hatred may take a different form, but it should not be minimized just because it's not blatently obvious as racism was in the past.

People are killed for any number of reasons. In the past, when people were in a certain group, the law would treat their killings differently, up to the point of letting the killers walk without any kind of investigation. The Civil Rights movement helped to bring equality to the treatment of those who killed racial minorities, and there has been a great deal of progress to help homosexuals prosecute those who assault and kill them. There will always be pockets of society that will hate other groups. It is up to the lawmakers and the courts to provide as much equal protection as possible. Your flippant remark ignored all of that.

Hello, I'm the point that just went over your head.

Anyone who assumes that hatred is no longer there because it is well-hidden is underestimating the issue at hand. The hatred may take a different form, but it should not be minimized just because it's not blatently obvious as racism was in the past.

* WOOSH *

And there is a big difference between people getting away with a crime like that and them being suitably punished because that is no longer an acceptable social norm like it was once.

People are killed for any number of reasons. In the past, when people were in a certain group, the law would treat their killings differently, up to the point of letting the killers walk without any kind of investigation. The Civil Rights movement helped to bring equality to the treatment of those who killed racial minorities, and there has been a great deal of progress to help homosexuals prosecute those who assault and kill them. There will always be pockets of society that will hate other groups. It is up to the lawmakers and the courts to provide as much equal protection as possible. Your flippant remark ignored all of that.

Fair enough. Your argument is different than the one I was addressing.

It was the societal view of homosexuality that did. Government acceptance will go a long way, as did the Government's action on racial civil rights when most weren't willing to accept.

I understand that point, I'm just saying that you can't compare the current situation with gay rights to that of the civil rights movement. Yes, there is gay bashing and people who have been murdered because of their sexuality. Just as we still see hate crimes against black, hispanics, and whites. The court decision did change some views, but at the time, the younger generation of Americans were becoming much more in favor of equal rights. I would argue that society pushed the courts in many instances to make those decisions.

I would also say that gays have much more rights in this era than blacks. The atrocities commited against minorities even 50 years is embarassing. Like I said, we don't have riots outside of public schools because a gay kid was allowed to attend. We don't have seperate drinking fountains or "no gays allowed" signs in restaurant windows. That's not to undermine the fact that there is bigotry and how embarassing it is to our country. Just saying that I'd rather be gay in this era than black 60 years ago.

I also think a Supreme Court ruling has less of an impact on views. Those against gay marriage are against it mostly for religious reasons. I don't see their view changing. The societal shift we are seeing toward acceptance is more a function of religion becoming less of a force on individuals.

Nonetheless, my point was simply that regardless of the Supreme Court, gay marriage will be legal in most states within the next 10 years. The issue is also about marriage, not all civil rights. Marriage is a rather trivial issue in my mind and as I said, is really just some minor tax and legal benefits.

I'll play Devil's advocate and contend that a lot of the decisions in the next 20~50 years will have equally substantial if not even more substantial impacts on this country.

A simple counterexample is that we could talk about an environmental case which would substantially affect the whole world and not just a segment of the population in one part of the world.

I think two huge issues are out there, one which is talked about and one which isn't:
1) Further consolidation of government power, particularly in the executive; hell, the fact that a bunch of stuff wasn't challenged in the last 8 years is scary and the fact that Obama isn't trying to close some of those loopholes is very disappointing to me
2) Further solidification of judicial protections for corporations; we keep putting up more and more barriers protecting the 1~5 companies that rule every industry, further damaging our economy and "free market" and giving them greater political clout because money rules governmental power

We're happily going down the road to any number of future dystopias and these decisions happen a lot in the Supreme Court, either actively or passively by not being challenged.

SI

It's kind of interesting that this would make 6 Catholics on the Supreme Court. That equals the number of Catholics in the entire history of the Supreme Court prior to the current group.

1) Further consolidation of government power, particularly in the executive; hell, the fact that a bunch of stuff wasn't challenged in the last 8 years is scary and the fact that Obama isn't trying to close some of those loopholes is very disappointing to me
2) Further solidification of judicial protections for corporations; we keep putting up more and more barriers protecting the 1~5 companies that rule every industry, further damaging our economy and "free market" and giving them greater political clout because money rules governmental power

I would add a third in the taking over of corporations/industries by the government in the guise of the "common good". The idea that "TARP restrictions" are going to be set on companies that haven't taken TARP funds or that compensation ceilings are going to be set for private positions worries me a great deal.

If the government has struggled for decades to run our tax system, social security, health care, education and military spending, I fear a future of the government also running several private sectors (ie, automobiles, investment banks, ..) in a similar fashion.

If the government has struggled for decades to run our tax system, social security, health care, education and military spending, I fear a future of the government also running several private sectors (ie, automobiles, investment banks, ..) in a similar fashion.

If the private sector did so well running itself they wouldn't need the government to step in and run them, but I digress.

I agree the government probably won't do much better running them.

Big government can't run itself. Neither can big business. What's the correlation? Big. Anything that gets to big just turns into a clusterfuck.

And isn't the lesson that we take away from that is that we should have started taking an anti-trust bat to a lot of these companies a long time ago?

SI

Sotomayor: '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'...


I love the ... at the end.

Leave off the end of the quote.

I would add a third in the taking over of corporations/industries by the government in the guise of the "common good". The idea that "TARP restrictions" are going to be set on companies that haven't taken TARP funds or that compensation ceilings are going to be set for private positions worries me a great deal.

If the government has struggled for decades to run our tax system, social security, health care, education and military spending, I fear a future of the government also running several private sectors (ie, automobiles, investment banks, ..) in a similar fashion.

I don't call it "taking over". These companies had no choice and essentially had the option of having the government as their biggest shareholder or flat out going out of business. I don't think the government wanted to take these companies over, but realized if they didn't, we'd have seen a bigger collapse than we did. I believe it's a huge moral hazard as to what they've done, but it's sometimes tough to stand by an ideology when the alternative is 20% unemployment and the collapse of the entire economic system.

I would also take some issue that the government hasn't been succesful at running things. Social security has worked for decades. Checks have been going out like clockwork and it's actually a rather efficient system for it's size. Issues with funding are more a function of people just living longer than they ever had.

They also run a lot of areas really well. The FDA for the most part has been a success at keeping food and drugs safe for people. The CDC has helped eradicate diseases from our population. Education is a tough area to lump into the federal government as they don't really have much say in it. It's primarily local and based off of local taxes. You don't hear about issues with schools in wealthy areas.

I'm against government controlling businesses and giving bailouts. But I also know in this situation that it was necessary. My hope is that they can slowly fix the problems at these companies, sell the parts they own back to the private sector, and make regulations and rules that ensure no one institution has the power to take down our entire economic system.

I think Obama is making a mistake not going with Judge Reinhold.

I hope Judge Mathis is his next nominee.

Mike Judge's appointment is long overdue.

I think Obama is making a mistake not going with Judge Reinhold.

Great episode of Arrested Development. Well all of them are great but still.

Hopefully Republican opposition to Sotomayor drags their appeal to women and Hispanics down even further.

I would also take some issue that the government hasn't been succesful at running things. Social security has worked for decades. Checks have been going out like clockwork and it's actually a rather efficient system for it's size. Issues with funding are more a function of people just living longer than they ever had.

They also run a lot of areas really well. The FDA for the most part has been a success at keeping food and drugs safe for people. The CDC has helped eradicate diseases from our population. Education is a tough area to lump into the federal government as they don't really have much say in it. It's primarily local and based off of local taxes. You don't hear about issues with schools in wealthy areas.
The problem is that the government is largely inefficient. That's why it costs double to teach a kid at a public school compared to a private school. Government run enterprises are often setup to fail and need very strong individual efforts to have a chance at success. They don't pay employees well, rarely fire for cause, have no profit accountability to shareholders and therefore lack the desire to have a self-sufficient business. It's OK for them to help industries for a small period of extreme hardship, but they will never run a private organization nearly as well over time.


I'm against government controlling businesses and giving bailouts. But I also know in this situation that it was necessary. My hope is that they can slowly fix the problems at these companies, sell the parts they own back to the private sector, and make regulations and rules that ensure no one institution has the power to take down our entire economic system.
I agree completely here and this is exactly what I was saying above. The poster was listing "fears" from the government and not following your logic above is a fear of mine. There are already stories in WSJ and the New York Papers about some banks with the ability to repay TARP not being allowed by Geithner and the treasury.

That's what fuels my fear and there's really no recourse for these companies if congress and the treasury decide they want to keep their interest in them for a while longer (or even add stipulations for non-TARP companies in the same industry). At the end of the day, there is recourse for creditors/shareholders in failing companies. They can fire the leadership, sue for contracts or even force a company into bankruptcy. There's no recourse outside of the Supreme Court for a company who feels trapped/bullied by the government. So, if that goes away, it's a very scary thing for business owners.

I agree completely here and this is exactly what I was saying above. The poster was listing "fears" from the government and not following your logic above is a fear of mine. There are already stories in WSJ and the New York Papers about some banks with the ability to repay TARP not being allowed by Geithner and the treasury.


Do they really have the ability to repay, or do they just have the cash? I've got a suspicion that this is the Treasury Dept. playing things conservative rather than deciding to collectivize the nation. Everybody knows the chance of another round of TARP getting approved is nil or close to it. Meanwhile, we're certainly not in a sustained recovery yet. Paying back the TARP funds at this juncture seems like a massive unjustified gamble that the bank won't need an injection of cash in the next two to five years for the nebulous benefit of public relations. If we see strong growth a year or two from now and Geithner or his successor is still reticent to let banks pay back TARP, then we can think about crapping our pants.

That's my hope as well. Again, we were talking about "fears". IMO, this fear is just as likely as the executive abusing power and some others listed above. My hope is that none happen, but this is one of the top for my current worries.

That's my hope as well. Again, we were talking about "fears". IMO, this fear is just as likely as the executive abusing power and some others listed above. My hope is that none happen, but this is one of the top for my current worries.

Really? You're an intelligent, rational guy normally, but your biggest fear is that Obama is going to nationalize whole industries?

I really can't see how a rational person would believe this.

Really? You're an intelligent, rational guy normally, but your biggest fear is that Obama is going to nationalize whole industries?

I really can't see how a rational person would believe this.
Not because I think Obama's a "crazy person", but because people are very willing to give up freedoms when they feel a crisis is at hand. It's basically the economic version of the Patriot Act and I remember many being terrified of that over the past few years. And, not to minimize that fear - there certainly was something to it, but I'm much more worried about the government running our entire banking/loan system than I am that some government agent will listen in on a phone call I have with a middle east contractor stationed in London (which I have made for my other company).

Not because I think Obama's a "crazy person", but because people are very willing to give up freedoms when they feel a crisis is at hand. It's basically the economic version of the Patriot Act and I remember many being terrified of that over the past few years. And, not to minimize that fear - there certainly was something to it, but I'm much more worried about the government running our entire banking/loan system than I am that some government agent will listen in on a phone call I have with a middle east contractor stationed in London (which I have made for my other company).

But we're nowhere close to the government running the banking sector and I can't see any scenario where that could happen. You may not agree with the modest limitations put onto TARP recipients, but it's a long, long way from the government running the banks.

I think the next year or so will be key. If the TARP hooks are still in companies next year at this time, then it will be much more of a real fear for me. I am certainly willing to take a "wait and see" approach, but I am not optimistic that we will have less government hooks in private businesses (esp the auto and banking sectors) one year from now.

Her ruling in the New Haven firefighter case is one that will come under the most scrutiny, and I expect conservatives to ironically attack her for being an activist when she upheld the lower court and previous circuit precedent.

She is clearly qualified (even if you count Thomas's SCOTUS career, he only has been a judge two years longer than she has) and it would be stupid for Republicans to attempt a strong fight on this one.

She is clearly qualified (even if you count Thomas's SCOTUS career, he only has been a judge two years longer than she has) and it would be stupid for Republicans to attempt a strong fight on this one.

But they might anyway. Republicans are losing battles on all fronts so they might as well prolong each battle so that they don't lose quite as many of them in the end.

But they might anyway. Republicans are losing battles on all fronts so they might as well prolong each battle so that they don't lose quite as many of them in the end.

It's quickly becoming a situation where the liberal press and Democrats appear to be trying to convince the Republicans by making these statements that they don't need to challenge this candidate. There's no question that they'd love to have smooth sailing without any real challenge of the nominee.

Great episode of Arrested Development. Well all of them are great but still.

Hopefully Republican opposition to Sotomayor drags their appeal to women and Hispanics down even further.

So you're a fan of identity politics then?

It's quickly becoming a situation where the liberal press and Democrats appear to be trying to convince the Republicans by making these statements that they don't need to challenge this candidate. There's no question that they'd love to have smooth sailing without any real challenge of the nominee.

I actually would love to see a real comprehensive examination, but then again I felt the same about Alito and Roberts. I'm of the belief that this is what goes with winning the presidency, selecting a qualified person to serve on the Supreme Court. Of course most people think it will be silly for the republicans to buck hard on this one as she seems qualified and they are garnering a reputation as the party of "no" on most things. Let's face it, unless Obama found a person who was pro-life, or something conservative in their portfolio, they will all denounce it (as the the dems would do/have done in the reverse situation).

It would be tough for Obama to criticize a challenge of his Supreme Court nominees after voting against both Roberts and Alito.

the fact that alito and roberts made it through the confirmation process still makes me sick to my stomach

the fact that alito and roberts made it through the confirmation process still makes me sick to my stomach

What's your problem with them?

Especially Roberts, who both sides seem to agree is a brilliant guy. The only thing I remember him really being grilled about is being Catholic (like Sotomayor)

And Alito was a judge just about as long as Sotomayor (length of judge service will surely be THE hyped qualification this time around. Though if Obama had chosen someone who wasn't a career judge, we'd hear praise about that person's "diversity of experience")

To me, the comprehensive examination already exists. Especially someone with as long a record as Sotomayor, she has written thousands of opinions where her judicial expertise and overall judgment can be considered. If the hearing was mostly about that, then I wouldn't mind. But my guess is the hearing will simply be a way to get her to reveal how she will rule on hot button cases that could come before the court.

the fact that alito and roberts made it through the confirmation process still makes me sick to my stomach

Heaven forbid qualified judges make it through :p.

Sotomayor: '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'...


I love the ... at the end.

Leave off the end of the quote.

The whole quote is this:
“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.”

To me, that's still a fairly racist/sexist statement.

The whole quote is this:
“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.”

To me, that's still a fairly racist/sexist statement.

Read the whole speech and it's not very controversial at all. Here's conservative Rod Dreher admitting he was wrong to get upset.

The NYT has a link to the entire speech in which she made the comment about the "wise Latina" reaching a "better" verdict than "a white male who hasn't lived that life." I'm still a bit troubled by the remark, but not in any important way. Taken in context, the speech was about how the context in which we were raised affects how judges see the world, and that it's unrealistic to pretend otherwise. Yet -- and this is a key point -- she admits that as a jurist, one is obligated to strive for neutrality. It seems to me that Judge Sotomayor in this speech dwelled on the inescapability of social context in shaping the character of a jurist. That doesn't seem to me to be a controversial point, and I am relieved by this passage:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases.

Relieved, because it strikes me as both idealistic and realistic. I am sure Sotomayor and I have very different views on the justice, or injustice, of affirmative action, and I'm quite sure that I won't much care for her rulings as a SCOTUS justice on issues that I care about. But seeing her controversial comment in its larger context makes it look a lot less provocative and troubling. As some of you have noted in comments.

Heres the link:

http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html?pagewanted=all

What's your problem with them?

Especially Roberts, who both sides seem to agree is a brilliant guy. The only thing I remember him really being grilled about is being Catholic (like Sotomayor)

And Alito was a judge just about as long as Sotomayor (length of judge service will surely be THE hyped qualification this time around. Though if Obama had chosen someone who wasn't a career judge, we'd hear praise about that person's "diversity of experience")


my problem with them is 100% ideological TBH.

and I think we all know my politics. I'm also not sure i'm 100% sold on this Sotomayor-lady FWIW though.

my problem with them is 100% ideological TBH.

:+1:

Additionally, I'm disappointed that both are clearly ideologues. Alito I knew would be this way (like Scalia), but I had hoped Roberts would be more of an even-handed professional.

my problem with them is 100% ideological TBH.

and I think we all know my politics. I'm also not sure i'm 100% sold on this Sotomayor-lady FWIW though.

:+1:

Additionally, I'm disappointed that both are clearly ideologues. Alito I knew would be this way (like Scalia), but I had hoped Roberts would be more of an even-handed professional.

What ideology and opinions are you talking about?

Roberts & Alito.

But what written opinions or ideologies of theirs do you find so objectionable? (To the point where you actually think they shouldn't have gotten confirmed).

And what type of (realistic) candidate SHOULD Bush have appointed, where you would have been OK with confirmation? Or would you just have opposed any Bush nominee? Which goes back to my original point, would you have a problem with Republicans putting up a fight against Obama's picks, not based on qualifications, but strictly based on who was doing the appointing?

Harriet Miers was obviously a disaster and offensive to everyone, but I don't see the huge problem with Roberts and Alito (other than who appointed them).

Yeeeah... that was very... unspecific ;)

Oh sorry, I don't think they shouldn't have gotten confirmed. Sorry if I gave that impression. Both Alito and Roberts were certainly qualified, and Bush winning two elections gives him the right to nominate justices that fit his worldview. I wish it was otherwise, but that's how things go, and I'm sure a lot of people felt the same about Clinton's nominees.

Ideally, the confirmation process only exists to keep the Harriet Mierss off the bench. There's really no doubt about the actual qualifications of Roberts, Alito, or Sotomayor. Sotomayor wouldn't be my pick, but Obama's the president, it's his call unless he basically abuses that right like Bush did with Miers.

I think that's the intention anyway, and the only thing that makes me back off that at all is the fact that the SCOTUS is far more powerful than was originally intended. As long as the power is used for whatever an individual perceives as "good", it's not a problem, but just imagine 9 supreme court justices you disagree with and the power they could throw around.

Now there's a post with which I can agree, molson.

I was particularly incensed by Alito's dissent (joined by Roberts & Scalia) in Wyeth v. Levine, part of which is, frankly, factually incorrect. Alito states that Wyeth could not have had a stronger warning in their label when, in fact, Wyeth could have specifically warned against the method of administration that was mis-used, causing the injury. In fact, it appears likely that clinical evidence supporting a claim that IV Push is often mis-administered may exist, which greatly, greatly weakens this argument.

Frankly, the dissent read to me like Alito trying to find a reason to protect a corporate entity - a purely ideological stance, not based in a rational view of the case itself.

I could say the same about Alito's dissent on Hamdan v. Rumsfeld - it reads like someone trying to find any justification for the trials as originally constructed. It reads like something you'd get from Bush's White House Counsel.

Actually, I don't think Scalia is an ideologue. He will break from the conservatives on certain issues, usually with free speech, but also on some death penalty cases (I really like his opinion in Ring v. Arizona), and he usually writes strong opinions to back up his reasoning. I really like reading his stuff. He's often compared to Thomas because they often vote together, but they're really different. Thomas is a terrible writer and seems to have a set agenda.

I still think it's too early to tell, but I think Alito will be more like Scalia than Thomas. However, I can understand why people didn't want him confirmed, because he was the most notable pro-life justice ever nominated. He even voted to uphold the PA abortion law that required spousal notification.

Most notable pro-life judge? I'd imagine that those who wanted to overturn Roe may fall there (then again, not everyone who thinks Roe was wrongly decided is necessarily pro-life... I'm pro-choice, but I strongly disagree with Roe - I'm not a substantive due process guy)

The problem I have with Scalia (http://osatwork.com/fofc/showthread.php?p=1867247&highlight=scalia#post1867247) (aside from the obvious ideological differences), is that he makes a big deal about originalism but doesn't hesitate to deviate from this when he wants to save something that matters to him personally. Also, his inability to recuse himself from cases where he has a clear conflict of interest is annoying. Lastly, he seems more intent in preserving Executive power and independence than Legislative power and independence, which kind of goes back to my first point.

As for Thomas - he acts as if he was appointed to the court to vote on his own views, regardless of existing case law.

Most notable pro-life judge? I'd imagine that those who wanted to overturn Roe may fall there (then again, not everyone who thinks Roe was wrongly decided is necessarily pro-life... I'm pro-choice, but I strongly disagree with Roe - I'm not a substantive due process guy)

I meant from a confirmation standpoint. Alito heard the circuit court level of Planned Parenthood vs. PA. It was known how he felt on Roe. He even voted to uphold the spousal notification law, which is as extreme as it gets.

With other nominees, it was strongly suspected, but there were no actual rulings. And sometimes it turned out they weren't (Kennedy, Souter).

I was particularly incensed by Alito's dissent (joined by Roberts & Scalia) in Wyeth v. Levine, part of which is, frankly, factually incorrect. Alito states that Wyeth could not have had a stronger warning in their label when, in fact, Wyeth could have specifically warned against the method of administration that was mis-used, causing the injury. In fact, it appears likely that clinical evidence supporting a claim that IV Push is often mis-administered may exist, which greatly, greatly weakens this argument.
First, I agreed with Thomas' comments on that case (which gave loose support to Stevens' majority). Still, I think it is very reasonable to make the dissent Alito wrote. IMO, Stevens' majority was pretty sloppy. He was basically saying that even though Wyeth had a warning for IV Push that matched the FDA's requirement, they should have changed its label without FDA’s pre-approval after receiving information regarding the risk of inproper injection. The problem with that logic is that Wyeth proposed a label change with a stronger warning in that late 80s that was rejected by the FDA (as a result of its own testing).

So, while I think there is some culpability to Wyeth, I think the majority opinion was worse than Alito's dissent. To essentially tell a company that after you met the FDA's requirement, even tried to make a more stringent warning and had it rejected by the FDA, they should have then gone around the FDA to make sure people knew risks not fully validated by the FDA seems pretty weak. Had Stevens made the majority read more like Thomas' opinion, I think the dissent would have been different.

I could say the same about Alito's dissent on Hamdan v. Rumsfeld - it reads like someone trying to find any justification for the trials as originally constructed. It reads like something you'd get from Bush's White House Counsel.
From what I recall, that was a jurisdiction question. It seems you are starting from a desired result and working back to justify in both these cases - as opposed to looking at the existing precedents and legal definitions independent of whether the decision will be "correct". In the Wyeth example, I think the overall decision should have favored with Levine. However, there were a lot of legal reaches were made by Stevens in that decision and I don't have an issue with a supreme court judge noting those in a dissent.

As for Thomas - he acts as if he was appointed to the court to vote on his own views, regardless of existing case law.

IIRC he kinda was. It was no secret he was big into "natural law". He was kind of a counterweight to Bork, who adamantly wasn't into natural law (at least on the bench), which helped derail him.

Since JPhillips posted Rod "Crunchy Con" Dreher's comments about Sotomayor's "wise Latina" speech, I thought I'd post this take by Ilya Somin at the Volokh Conspiracy.

hxxp://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243483882


After some consideration, I have decided that Sonia Sotomayor's 2001 speech, "A Latina Judge's Voice" deserves more extensive analysis than I gave it in a previous post. I still believe that the speech shows that Sotomayor thinks that judges can often legitimately base decisions in part on their racial or ethnic backgrounds. I especially think that that interpretation is by far the most plausible reading of Sotomayor's statement that she hopes that ""a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

However, it would be foolish to overlook the fact that many people, including serious commentators such as University of Texas lawprof Frank Cross and Reason's Kerry Howley believe that the relevant part of the speech is actually innocuous. I can't ignore the possibility that the speech is unclear, or that I just got it wrong. At this point, however, I still think that my initial interpretation was largely correct, and in this post I will try to explain why. For convenience, here is the entirety of the paragraph where the "wise Latina woman" sentence occurs:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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 who hasn't lived that life.

I. Is Sotomayor's Claim Limited to Discrimination Cases?

Some of my critics, including Cross, argue that this passage merely means that a Latina judge will, on average, do better than white males in deciding discrimination cases (perhaps because of her greater personal experience with discrimination). The first sentence of the next paragraph does in fact state that we should "not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society." However, it seems unlikely that Sotomayor's claim really is limited to such cases. After all, she made it in explicit response to Justice O'Connor's far more general statement that "a wise old man and wise old woman will reach the same conclusion in deciding cases." If Sotomayor meant to say that O'Connor's argument is correct the vast majority of the time with the exception of discrimination cases, it is strange that she gives no hint of that. Moreover, in an earlier part of the speech, Sotomayor denies that the goal of transcending one's race in judicial decisionmaking "is possible in all or even in most cases." That suggests that she believes her argument to have much broader application than merely to discrimination cases.

Even if Sotomayor's claim really is limited to discrimination claims, it is still deeply problematic. It is wrong to assume that a judge belonging to a group that is often victimized by a particular type of injustice will be generally superior in deciding cases that address it. Are white male judges generally superior in hearing reverse discrimination cases such as the one Sotomayor decided in Ricci v. DeStefano? Are judges who own real estate better qualified to hear takings claims? Perhaps judges who own businesses are the ones best qualified to hear claims asserting that an economic regulation is unconstitutional or otherwise illegal. A judge belonging to a group victimized by a particular type of injustice might be less likely to reject similar claims that have merit. On the other hand, she might also be excessively prone to accept claims that should be rejected or to ignore important interests on the other side of the case. Which effect dominates the other will probably vary from judge to judge and from case to case. In any event, we will likely be better off if judges assess discrimination cases and other claims as objectively as possible, while seeking to minimize the impact of their own personal racial or ethnic backgrounds.

II. Did Sotomayor Merely intend to Recognize the Impact of Judges' Racial Backgrounds on their Decisions, Without Embracing it?

Other critics, including Howley, argue that Sotomayor merely meant to recognize the commmon sense point that judges' decisions are sometime affected by their racial backgrounds, without claiming that this is a good thing. In one part of the speech, Sotomayor does indeed state the following:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases.

However, in the very next sentence Sotomayor said that "I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society." This suggests that it isn't necessarily a good idea for judges to strive to "transcend . . . personal sympathies and prejudices." In combination with the above-quoted statement about the supposed superiority of Latina judges over white male ones in deciding many cases, it seems that Sotomayor believes that judges not only take account of their racial background in making decisions, but are often justified in doing so. Perhaps Sotomayor also believes that judicial transcendance of personal sympathies and prejudices is a desirable goal; but since in her view it is probably impossible to achieve in a large number of cases, it will often be a "disservice" to pursue it at the expense of denying the special insights that might sometimes be had by relying on those "prejudices" after all. That doesn't mean that Sotomayor believes that a judge's race or gender is a useful resource in all cases or that impartiality is completely worthless. After all, she said that the "wise Latina" judge is likely to do better "more often than not," not that she will have an advantage across the board. However, it's clear that she does believe that race and gender are useful guides to judicial decisionmaking in at least a large number of situations.

In addition, if Sotomayor really did merely mean to say that judges sometimes wrongly take account of their personal background in deciding cases, there would have been no need to dwell on such an obvious point at great length - one that hardly any serious commentator disagrees with. The real question - the one she actually tried to address - is how we should react to this state of affairs. One approach - the one I think best - is to try to appoint judges who will ignore their own racial backgrounds as much as possible and to strive to promote that as a norm for all judges to follow. Sotomayor's approach, by contrast, is to endorse reliance on personal background in at least some cases, and to urge minority judges to offset the "personal sympathies and prejudices" of their white colleagues with their own.

Finally, I think it's telling that hardly any one would defend a similar statement made by a white male judge. As legal columnist Stuart Taylor puts it:

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life" — and had proceeded to speak of "inherent physiological or cultural differences" [as Sotomayor did later in her speech].

I don't think that Sotomayor is a "racist and a sexist," nor do I think she should be "banished from polite society." However, her statement does show that she believes that judges should often base decisions in part on their personal racial and gender backgrounds. If a white male judge had said something similar, few would deny that such (or something much worse) was the import of his words. Sotomayor's speech should be judged by the same standards.

I would have cut Sotomayor more slack if the statements in question had been off the cuff remarks rather than part of a prepared speech delivered as a keynote address at a conference; the speech was also published in a law journal in 2002, at which point Sotomayor could have removed or clarified any part of her remarks that didn't really reflect her considered views. I would also be willing to ignore the speech if she had repudiated it at any time in the past eight years. I will even give her the benefit of the doubt if she repudiates the more problematic parts of the speech now (perhaps at her confirmation hearings). We have all sometimes made mistaken statements that we admit to be wrong in retrospect. But until that happens, I can't avoid the conclusion that the speech reveals a troubling element of Sotomayor's view of judging.

UPDATE: Frank Cross authorized me to post the following from e-mails he sent me clarifying his position:

I didn't mean the statement was innocuous. Just that it was limited to the discrimination context. I think it is objectionable in that context as well. Though not outrageously so, as I suspect it is a common psychological feeling for anyone that they are right and others wrong . . .

I think she was talking about the discrimination context, I think it's wrong to say that a Latina woman would make a "better" decision than a white male in this context, but I think it is right to think that a panel including diversity would make a better decision in this context.

The problem with that logic is that Wyeth proposed a label change with a stronger warning in that late 80s that was rejected by the FDA (as a result of its own testing).

Footnote 1 in the Vermont Supreme Court ruling (http://www.jenner.com/files/tbl_s69NewsDocumentOrder/FileUpload500/1023/Levine_v_Wyeth.pdf) juxtaposes the approved text and rejected text. As you can see, even the rejected text doesn't contraindicate any form of intravenous injection generally, and doesn't mention a particular method of IV administration (such as IV push), specifically.

As David Frederick pointed out in a response to Souter, there's evidence (referenced in an amicus brief by Dr. Budhwani) that in the 80s and 90s Wyeth had access to data (or should have had access to data) that more specifically showed the heightened dangers of using IV push as a method of administration.

It's important to note, however, that Wyeth's defense mostly centered around the idea that FDA Approval absolves them of all liabilities regarding their drug (assuming they provided all factual information to the FDA, of course, for a counter-example see Vytorin, Avandia, Vioxx). I read the majority opinion as saying that primary responsibility resides with the manufacturer and thus FDA Approval doesn't absolve them of responsibility, which may be exposed by individual cases at the state level. Given that the FDA clearly doesn't have the manpower to do extensive clinical trials on every drug, and synthesize the data in a variety of ways to uncover these issues, it's the common sense decision that had to be arrived at.

Which brings us back to the incident itself and its relative lack of warning in the label. While the label is clear that administration by IV methods carries risk, and then delineates what the risk entails in the case of extravasation (where the needle leaves the intended artery or vein and injects into a vein or artery or surrounding muscle tissue - essentially where it shouldn't go) it doesn't go to the length of saying that certain IV techniques, such as IV Push, represent an even enhanced risk of extravasation, and shouldn't be used. In fact, the label says that IV methods can be safe if done carefully.

The consensus in the medical community seems to be that the extravasation risks associated with IV Push are so clear, and the adverse effects of the introduction of Phenergan when introduced to arterial blood so horrible, that it's common sense that one wouldn't use IV Push. So one would assume that the technician who did use this technique (and even ignored the fact that Ms. Levine suffered pain during the push) was clearly too ill-trained to notice that subtlety. Given this it seems the common sense solution would be to contraindicate against IV push in the label, so as to avoid this scenario, and, as I said earlier, there appears to be evidence that Wyeth knew, or should have known, that the higher incidence of extravasation with IV push probably merited this kind of contraindication. Since the updated label the FDA rejected didn't go into this, there's no real indication that the FDA would have rejected such a clear contraindication if Wyeth brought it to them.

From what I recall, that was a jurisdiction question. It seems you are starting from a desired result and working back to justify in both these cases - as opposed to looking at the existing precedents and legal definitions independent of whether the decision will be "correct".

Ironically, that's exactly what I thought Alito did in that decision. His dissent essentially reads as "since the Executive is a properly constituted authority, the legal construction of the trials meets that requirement, therefore they're OK" which is, in my opinion, a narrow legal view that ignored the much more important context of the question at hand itself.

I really hate the term "reverse discrimination."

I killed the thread. :(

I killed the thread. :(


It wasn't a real impressive thread anyway.

Big ruling by the Supreme Court that could have implications on Sotomayor hearings. Reversal of her ruling in the white firefighters reverse discrimination suit. Certainly will bring her previous statements concerning race into play.

Court rules for white firefighters over promotions (http://www.washingtonpost.com/wp-dyn/content/article/2009/06/29/AR2009062901608_pf.html)

I'm so confused, but not by the actual case...the article posted reads:

Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.

Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.

So 56 firefighters passed the exam, and the numbers they give were 41+22+18. Seems like 81 passed the exam. Also, if the split was 50/25/25 for whites/blacks/hispanics, why was it that 17 whites and 2 hispanics could expect promotion? It would seem that's a little off.

Finally, and maybe Ginsburg alluded to this, but would the city actually have to use those tests? Couldn't they just say they felt the test was only partly for promotion? I'm not sure this will have a major impact on Sotomayor (who I don't really care that much for) considering she and others upheld a prior ruling that 4 current justices upheld as well.

So 56 firefighters passed the exam, and the numbers they give were 41+22+18. Seems like 81 passed the exam. Also, if the split was 50/25/25 for whites/blacks/hispanics, why was it that 17 whites and 2 hispanics could expect promotion? It would seem that's a little off.

Finally, and maybe Ginsburg alluded to this, but would the city actually have to use those tests? Couldn't they just say they felt the test was only partly for promotion? I'm not sure this will have a major impact on Sotomayor (who I don't really care that much for) considering she and others upheld a prior ruling that 4 current justices upheld as well.

If I read the decision correctly, it states that the 19 defendents were the highest scores on the test. So while there were minorities that passed the test, the best scores were from the white and hispanics group who was suing. I don't think that the best scores got the promotion.

In regards to using the test results as a partial measure, I think that might have been a good choice. It appears that the defense chose to argue that they were concerned that a lack of minorities would result in discrimination litigation. The majority of the court stated that you couldn't deny the firefighters those spots for that reason. They state that you can't use assumed litigation as a means to deny those qualified individuals their spots for promotion.

Full ruling text:

http://big.assets.huffingtonpost.com/07-1428.pdf

Why would the ruling impact Sotomayor at all? Souter voted with the dissenters (ie, the group Sotomayor would be with). So basically she'd be with Souter... who she's replacing...

The Republicans already backed away from strong criticism of her comments, and it's certainly doubtful they'll reopen that line of attack because of one 5-4 decision. They do not want to make this about race.

They'll still release more orders this afternoon. One of them is the decision whether to hear Troy Davis' death penalty appeal. They denied an earlier petition, so I'm not expecting them to hear this one, but there's always hope.

Having read the decisions:

The majority opinion goes out of its way to avoid criticizing the 2nd circuit's decision, and isn't even very critical of the lower district court opinion. Instead, Kennedy writes that it is up to SCOTUS to help guide lower courts in situations like this. Ginsburg's dissent also notes that the 2nd circuit ruling was in line with prior 2nd circuit precedent.

However, Alito's concurring opinion is very critical of the 2nd circuit and the district court, and also goes into some pretty weird areas where he blames it on an Al Sharpton-like pastor that has close ties to the mayor. It is notable that Kennedy and Roberts refused to join this opinion.

Hearings begin today. I'm sure there will be plenty of live feeds available.

Hearings start today.

IMHO, should be pretty boring. The extreme elements of both parties will use the opportunity to give some stump speeches about pet issues like race and abortion. She will have been coached well and won't give a straight answer to anything. Otherwise, she will accord herself well. Any senator who needs to stay on the good side of Hispanic voters will pull his/her punches. A few senators who do not will use the opportunity to try and revisit some culture war issues. And she will be confirmed--I'm guessing 70-30. I think that the GOP leadership won't want to have a vote that lets the Dems spin it going forward as "the GOP hates women and Hispanics."

Personally, since I care most about criminal defense issues, I am not that happy with the pick. I think that she will be a bit to the right of Souter on those issues, and I think that she will not join the, for lack of a better word, hypertechnical defendant rights opinions of Scalia et al. With a democratic president and senate, I was, personally, hoping for better. But, whatever. She's qualified, and she will be a fine justice.

I predict many questions about specific cases where her answers would violate judicial ethics. When she refuses to answer, she will be accused of dodging the questions. Whatever, she's clearly qualified, and any Republican has to admit that, so voting against her would be purely ideological.

Personally, since I care most about criminal defense issues, I am not that happy with the pick. I think that she will be a bit to the right of Souter on those issues, and I think that she will not join the, for lack of a better word, hypertechnical defendant rights opinions of Scalia et al. With a democratic president and senate, I was, personally, hoping for better. But, whatever. She's qualified, and she will be a fine justice.

I agree with you, but let's remember, no one expected Souter to be so supportive of defendant rights. Sotomayr is certainly to the left of what Souter was expected to be. At the very least, I think she will be willing to work with the liberal justices more, and at worst will be watering down some of their opinions instead of joining the conservatives.

I'm sick of the talking point that someone being a judge is akin to being a sports referee or umpire.

It's just an annoying song and dance. She isn't going to say anything crazy and it's mostly grandstanding for politicians to get their 10 second soundbyte on the cable news networks. Democrats will vote for her and there aren't enough dumb Republicans to fight the first hispanic nominee.

I predict many questions about specific cases where her answers would violate judicial ethics. When she refuses to answer, she will be accused of dodging the questions. Whatever, she's clearly qualified, and any Republican has to admit that, so voting against her would be purely ideological.

Like Obama's votes against confirming Alito and Roberts?

Like Obama's votes against confirming Alito and Roberts?

Probably, although on the whole she's probably more towards then center than either Roberts (maybe) or Alito (definitely).

Probably, although on the whole she's probably more towards then center than either Roberts (maybe) or Alito (definitely).

I think that definitely depends on where you define "center". :)

Like Obama's votes against confirming Alito and Roberts?
Don't you think it's a little tough for a black man to vote for a strict constructionist considering our history?

Like Obama's votes against confirming Alito and Roberts?

Yep, because as I said earlier:

Front Office Football Central - View Single Post - POL: Alito Debate (http://www.operationsports.com/fofc/showpost.php?p=1492546&postcount=56)

Despite being a big pinko liberal, I'm going to have to defend Alito (and other justices). The confirmation process is a joke because a judge is asked so many questions that are completely inappropriate and if he answered them would make him prejudiced towards so many cases that they might hear.

Alito was clearly qualified. So were Ginsburg, Scalia, Stevens, Breyer, Souter, Kennedy. Thomas was not. O'Connor was not.

But nice try Cam. You almost had me!

Don't you think it's a little tough for a black man to vote for a strict constructionist considering our history?

Um, no. It's not like constructionists believe the 14th Amendment is somehow invalid.

I think that definitely depends on where you define "center". :)

Of course, in a world where Kennedy is considered a centrist (or even leftist) partly because he wrote an opinion saying you can't put gays in jail for having sex in their own home, I would say the definition of the center is pretty screwed up.

I predict many questions about specific cases where her answers would violate judicial ethics. When she refuses to answer, she will be accused of dodging the questions. Whatever, she's clearly qualified, and any Republican has to admit that, so voting against her would be purely ideological.

sounds like the same as my disappointment when the last guy wouldnt answer questions. I imagine I will be equally disappointed when she doesnt and people will just tell me this is par for the course. I think it sucks and I hope she answers questions but I doubt she will. I think perhaps everyone on the committee should vote against her everytime she refuses to answer a question. That'd be nice.

Yep, because as I said earlier:

Front Office Football Central - View Single Post - POL: Alito Debate (http://www.operationsports.com/fofc/showpost.php?p=1492546&postcount=56)



But nice try Cam. You almost had me!

Oh drat! I was ----><---- this close to actually winning an argument on the internet. And I would've gotten away with it if it hadn't been for meddling ability to search the archives!

:)

I wasn't trying to "get you". It was an actual question. Nice job at avoiding answering it though!

I predict many questions about specific cases where her answers would violate judicial ethics. When she refuses to answer, she will be accused of dodging the questions. Whatever, she's clearly qualified, and any Republican has to admit that, so voting against her would be purely ideological.

So, basically, it's just like any other nomination?

SI

Oh drat! I was ----><---- this close to actually winning an argument on the internet. And I would've gotten away with it if it hadn't been for meddling ability to search the archives!

:)

I wasn't trying to "get you". It was an actual question. Nice job at avoiding answering it though!

How did I avoid answering it? You asked the question and I said "yep", and showed a link from when I said that in the past. You didn't have to search the archives for that, it was in the very post you just responded to.

How did I avoid answering it? You asked the question and I said "yep", and showed a link from when I said that in the past. You didn't have to search the archives for that, it was in the very post you just responded to.

Sorry, I missed the "yep" amidst the condescension and smuggery.

So, basically, it's just like any other nomination?

SI

Exactly.

And I agree with her (and any other justices) decision not to answer questions that could prejudice future cases. Both parties have made a mockery of the process.

Um, no. It's not like constructionists believe the 14th Amendment is somehow invalid.
But they didn't believe that blacks had any rights before it.

Serious question. Will any decision the Supreme Court makes in the coming years have any impact on our daily lives?

Um, no. It's not like constructionists believe the 14th Amendment is somehow invalid.

Then they're not really constructionists. I mean, do you think the authors of the 14th intended for it to be used for desegregation of schools, for interracial marriage? If not, then a constructionist would have to argue that Brown and Loving should be overturned.

But they didn't believe that blacks had any rights before it.

Are you trying to tell me that under the Constitution before the 14th Amendment blacks did have rights? I would hope that any judge nominated to the Supreme Court, regardless of their judicial philosophy, would at least have a solid grasp of history... including our flaws.

Then they're not really constructionists. I mean, do you think the authors of the 14th intended for it to be used for desegregation of schools, for interracial marriage? If not, then a constructionist would have to argue that Brown and Loving should be overturned.

I think you're getting a little confused. Constructionism just means that the judge relies on the written text. There's nothing in the text of the 14th Amendment that would preclude a constructionist judge reaching the majority opinion in either Brown or Loving.

Are you trying to tell me that under the Constitution before the 14th Amendment blacks did have rights? I would hope that any judge nominated to the Supreme Court, regardless of their judicial philosophy, would at least have a solid grasp of history... including our flaws.
No they didn't. And strict constructionist judges helped maintain that status quo against civil rights before the 14th amendment.

No they didn't. And strict constructionist judges helped maintain that status quo against civil rights before the 14th amendment.

So did the Democrat Party, both before and after the passage of the 14th amendment. Are you saying that a black man should have a difficult time voting for Democrats now too?

Constructionism just means that the judge is arrogant enough to call their every vote the absolute right answer to every constitutional question.

Fixed.

Fixed.

You know, a wise Latina woman would have come up with a funnier "fix". :p

So did the Democrat Party, both before and after the passage of the 14th amendment. Are you saying that a black man should have a difficult time voting for Democrats now too?
Your mixing a politician and an ideology. The ideologies of people like Thomas, Alito, and Scalia are the same as they were 100 years ago. Strict constructionists.

You know, a wise Latina woman would have come up with a funnier "fix". :p

Badda bing.

Serious question. Will any decision the Supreme Court makes in the coming years have any impact on our daily lives?

I think it depends who you are. For instance, I'll bet that Kelo impacted the daily lives of at least a few people.

I think that definitely depends on where you define "center". :)

I think we (by "we" I mean FOFC) had a discussion on this and someone linked to a supposed historical ranking of the ideology of SC Justices that showed that the Supreme Court is skewed right and Souter, Ginsberg and Breyer are just barely left of center with the only real "liberal" currently Stevens.

I'm not sure if this (http://scotusscores.com/) was that ranking, but it's what I found, so I'll link it and leave others more familiar with this to comment.

Of course, what people view as a "liberal" "conservative" or "centrist" justice probably varies from person to person.

I wasn't trying to "get you".

Sorry Cam, but that's the way I read your question to Larry as well. It may just be me, but I think you often ask questions in a way that implies you already know the answer, and that the answer displays some hypocrisy or logical inconsistency on the part of the person of whom you are asking the question.

In general, I assume you do this somewhat involuntarily because it is the nature of your work to exist in a somewhat rhetorically combative atmosphere, and that carries over to your conversations (of a political bent, clearly) in FOFC.

It's probably why you're often on the receiving end of people who feel you've twisted their argument against them, instead of discussing an issue on consistent grounds.

Your mixing a politician and an ideology. The ideologies of people like Thomas, Alito, and Scalia are the same as they were 100 years ago. Strict constructionists.

And you're confusing ideology, political philosophy, and judicial interpretation.

A constructionist judge making a civil rights ruling pre-14th Amendment is going to have a very different result than a constructionist judge making a ruling post-14th Amendment... because the post-14th Amendment judge is going to closely examine the text of the 14th Amendment in making their decision.

This is one reason why Hugo Black, a strict constructionist, voted in favor of both Brown v. Board of Education and Loving v. Virginia.

With that in mind, how is supporting a constructionist judge in 2009 any harder than supporting the Democrat Party in 2009?

From reading your posts, it sounds to me like you're trying to make a half-assed inference that strict constructionists are racist. If you're going to make that argument, at least have the balls to say what you mean.

Sorry Cam, but that's the way I read your question to Larry as well. It may just be me, but I think you often ask questions in a way that implies you already know the answer, and that the answer displays some hypocrisy or logical inconsistency on the part of the person of whom you are asking the question.


So how could I have phrased "Like Obama voted against Roberts and Alito?" less combatively?


It's probably why you're often on the receiving end of people who feel you've twisted their argument against them, instead of discussing an issue on consistent grounds.

Nah. I think it's because they get annoyed that I'm right. :p

So did the Democrat Party, both before and after the passage of the 14th amendment. Are you saying that a black man should have a difficult time voting for Democrats now too?

I ain't even a registered Democrat...and everytime I see somebody do that, I take the Republican Party and the conservative "movement" in general just a little less seriously.

Expected better from you, Cam.

And you're confusing ideology, political philosophy, and judicial interpretation.

A constructionist judge making a civil rights ruling pre-14th Amendment is going to have a very different result than a constructionist judge making a ruling post-14th Amendment... because the post-14th Amendment judge is going to closely examine the text of the 14th Amendment in making their decision.

This is one reason why Hugo Black, a strict constructionist, voted in favor of both Brown v. Board of Education and Loving v. Virginia.

With that in mind, how is supporting a constructionist judge in 2009 any harder than supporting the Democrat Party in 2009?

From reading your posts, it sounds to me like you're trying to make a half-assed inference that strict constructionists are racist. If you're going to make that argument, at least have the balls to say what you mean.

Strict constructionist is not simply looking at the text and basing a decision on the words in the text. It's much more complicated than that. Three's been thousands of pages of academic literature published on the 14th Amendment vis-a-vis the "strict constructionist" view and even what it means to be a strict constructionist. In fact, even calling a jurist "a strict constructionist" is an oversimplification of the debate, because there isn't one accepted definition of strict constructionism or even if it's possible to be a strict constructionist. There is no justice on the current court that is a strict constructionist or even a constructionist. I know many argue Antonin Scalia--but there is a difference between strict constructionist and original intent.

Constructionist or strict constructionist is now becoming a misused pop culture term like "judicial activist." Russ Feingold had it right -- judicial activism is now thrown around by people on both sides of the ideological spectrum when it involves a case where the person disagrees with the outcome.

I ain't even a registered Democrat...and everytime I see somebody do that, I take the Republican Party and the conservative "movement" in general just a little less seriously.

Expected better from you, Cam.

I was trying to point out how ridiculous RainMaker's argument was by making an equally absurd point. Sorry if you expected better.

And you're confusing ideology, political philosophy, and judicial interpretation.

A constructionist judge making a civil rights ruling pre-14th Amendment is going to have a very different result than a constructionist judge making a ruling post-14th Amendment... because the post-14th Amendment judge is going to closely examine the text of the 14th Amendment in making their decision.

This is one reason why Hugo Black, a strict constructionist, voted in favor of both Brown v. Board of Education and Loving v. Virginia.

With that in mind, how is supporting a constructionist judge in 2009 any harder than supporting the Democrat Party in 2009?

From reading your posts, it sounds to me like you're trying to make a half-assed inference that strict constructionists are racist. If you're going to make that argument, at least have the balls to say what you mean.

Not saying that they are racist at all, although using Hugo Black as your example is a bit ironic considering he was a member of the KKK.

You are correct that things have changed since the 14th Amendment. But before that, a constructionist judge would have a much tougher time considering a black "equal" than a more liberal judge. Constructionist judges also are not supportive of civil rights issues such as the Voting Rights Act or Affirmative Action.

You can go one step further and swap blacks with gays in today's culture. If a case for gay marriage reached the Supreme Court, a conservative judge would rule against allowing it. I just find it much tougher for a minority or even a woman who has had to fight for civil rights to side with a Judge who has an ideology that isn't favorable to it.

Strict constructionist is not simply looking at the text and basing a decision on the words in the text. It's much more complicated than that. Three's been thousands of pages of academic literature published on the 14th Amendment vis-a-vis the "strict constructionist" view and even what it means to be a strict constructionist. In fact, even calling a jurist "a strict constructionist" is an oversimplification of the debate, because there isn't one accepted definition of strict constructionism or even if it's possible to be a strict constructionist. There is no justice on the current court that is a strict constructionist or even a constructionist. I know many argue Antonin Scalia--but there is a difference between strict constructionist and original intent.

Constructionist or strict constructionist is now becoming a misused pop culture term like "judicial activist." Russ Feingold had it right -- judicial activism is now thrown around by people on both sides of the ideological spectrum when it involves a case where the person disagrees with the outcome.

Well yes, but I didn't really feel like getting into a really long debate over the differences between constructionism, textualism, or originalism. I figured I'd just use the language RainMaker was comfortable with to keep the discussion as focused as it could be.

I was trying to point out how ridiculous RainMaker's argument was by making an equally absurd point. Sorry if you expected better.

Look at the bolded text, Cam. It's not the absurdity of your point that makes it difficult for me to take you seriously.

I think it depends who you are. For instance, I'll bet that Kelo impacted the daily lives of at least a few people.
I'm sure it did and I'm sure every ruling impacts someone. But for the most part, I doubt many of us on the board have or will be impacted by the ruling. It's going to be an extremely small percent of the population that deals with the consequences.

I guess my point is that we aren't in line for many landmark rulings that will change the entire course of the country and society in general. Even something as hot button as gay marriage or abortion doesn't pose the same impact that civil rights rulings did. I just don't see the course of American history changing over a couple judges on the Supreme Court anymore.

Not saying that they are racist at all, although using Hugo Black as your example is a bit ironic considering he was a member of the KKK.

You are correct that things have changed since the 14th Amendment. But before that, a constructionist judge would have a much tougher time considering a black "equal" than a more liberal judge. Constructionist judges also are not supportive of civil rights issues such as the Voting Rights Act or Affirmative Action.

You can go one step further and swap blacks with gays in today's culture. If a case for gay marriage reached the Supreme Court, a conservative judge would rule against allowing it. I just find it much tougher for a minority or even a woman who has had to fight for civil rights to side with a Judge who has an ideology that isn't favorable to it.

If constructionists are blinded by their ideology, as you say they are, then how could Justice Black have reached the conclusion he did in either Loving or Brown?

Constructionist is not a synonym for conservative, nor is it an antonym for liberal. That's part of your problem right there. And as I keep trying to explain, ideology and judicial philosophy are two different things.

Not to get all Flasch-y on you, but if you're going to start throwing out statements like "constructionist judges are not supportive of civil rights issues such as the Voting Rights Act or affirmative action", I'd like some citations from these judges.

You're also aware, I'm sure, that there are plenty of non-constructionist legal arguments against affirming a right to gay marriage through the courts, rather than the legislature or through a constitutional amendment.... unless you for some reason think that the California Supreme Court and the NY Court of Appeals are made up of strict constructionists.

Look at the bolded text, Cam. It's not the absurdity of your point that makes it difficult for me to take you seriously.

Honestly, I didn't even realize I typed that. Democratic party. Better?

Look at the bolded text, Cam. It's not the absurdity of your point that makes it difficult for me to take you seriously.

dola... I do believe that people should show their political opposition enough respect to refer to their party by its proper name. I'm still having trouble figuring out what's so demeaning about the phrase "Democrat Party" as opposed to "Democratic Party". Don't we call individuals "Democrats" and not "Democratics"?

Just to be perfectly clear: I'm not flaming, using sarcasm, or any other verbal jousting tool. I'm just a little confused at the vehement reaction to a missing "ic".

dola... I do believe that people should show their political opposition enough respect to refer to their party by its proper name. I'm still having trouble figuring out what's so demeaning about the phrase "Democrat Party" as opposed to "Democratic Party". Don't we call individuals "Democrats" and not "Democratics"?

Just to be perfectly clear: I'm not flaming, using sarcasm, or any other verbal jousting tool. I'm just a little confused at the vehement reaction to a missing "ic".

Because those that do it purposely do it solely to piss off members of the Democratic party. It isn't the word per se, it's the intended asshatish behavior that's the problem. It doesn't bother me, as I think it's better to ignore such childish behavior, but that doesn't make it any less childish.

Because those that do it purposely do it solely to piss off members of the Democratic party. It isn't the word per se, it's the intended asshatish behavior that's the problem. It doesn't bother me, as I think it's better to ignore such childish behavior, but that doesn't make it any less childish.

Got it. That wasn't my intent, and I apologize.

Got it. That wasn't my intent, and I apologize.

I wonder what you would have gotten if you used my preferred spelling of Demoncrat? :D

If constructionists are blinded by their ideology, as you say they are, then how could Justice Black have reached the conclusion he did in either Loving or Brown?

Constructionist is not a synonym for conservative, nor is it an antonym for liberal. That's part of your problem right there. And as I keep trying to explain, ideology and judicial philosophy are two different things.

Not to get all Flasch-y on you, but if you're going to start throwing out statements like "constructionist judges are not supportive of civil rights issues such as the Voting Rights Act or affirmative action", I'd like some citations from these judges.

You're also aware, I'm sure, that there are plenty of non-constructionist legal arguments against affirming a right to gay marriage through the courts, rather than the legislature or through a constitutional amendment.... unless you for some reason think that the California Supreme Court and the NY Court of Appeals are made up of strict constructionists.

Like I said, Black is a horrible case to study here. He was in the KKK in his early years and many believe he went outside his judicial beliefs on civil rights cases as to not look like a racist.

The "strict constructionist" view of Plessy vs Ferguson was that seperate but equal didn't violate the 14th amendment.

The word "strict constructionist" does get thrown around in the wrong way, but that's what conservatives want out of a judge. They believe that judges like Scalia, Thomas, Roberts, and Alito are constructionists (whether that term is right or wrong is another matter). Thomas doesn't believe in the Voting Rights Act and Roberts has tried to change the burden of proof. Others like Scalia and Alito have spoken out against parts of it.

Almost all those guys have spoken out against affirmative action as well. Scalia wrote a wild dissent on the denial of review regarding Denver's Affirmative Action program. He has also given many speeches on the topic which have caused massive protests. Alito has material from the 80's too.

Are you really telling me that people on the right are not against affirmative action? Are you trying to say that a black man should feel comfortable voting in someone like Alito and Roberts?

Ok, I had never heard the "Democrat" party thing. I guess I don't see the distinction- what the difference?

This isn't Fox News putting a "D" next to Mark Sanford or continually using "Barack Hussein Obama".

SI

Like I said, Black is a horrible case to study here. He was in the KKK in his early years and many believe he went outside his judicial beliefs on civil rights cases as to not look like a racist.


Even if many people believe that, it still doesn't take away from the fact that a strict constructionist used a strict constructionist argument to vote in favor of cases like Brown and Loving.


The "strict constructionist" view of Plessy vs Ferguson was that seperate but equal didn't violate the 14th amendment.


And in my opinion, the dissent in Plessy v. Ferguson was much more "constructionist" than the majority opinion. The majority had to discount the text of the 14th Amendment, which spoke simply of "equal protection of the laws" as somehow protecting political equality without protecting social equality.

The dissent (by another former KKK-er, oddly enough), said (in part):
But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.



Are you really telling me that people on the right are not against affirmative action?

Nope. I don't even know where this comes from, unless you're once again using the words constructionist/conservative/right incorrectly and interchangeably. I will say that opposition to affirmative action can be found among those on the left as well, and it isn't limited only to those who are white.


Are you trying to say that a black man should feel comfortable voting in someone like Alito and Roberts?
Any reason you decided not to include Clarence Thomas in this sentence? Did it look absurd even to you? Yes, I am absolutely saying that a black man (or woman) for that matter can feel comfortable voting for someone like Alito or Roberts. I think I've been saying that for at least a page now.

Would you think less of a black person who supported Roberts or Alito?

Dola:

The reason I substituted the word "can" for "should" is because it's pretty damned ridiculous to think that you can sum up an entire person's political philosophy based on the color of their skin. Whether or not they "should" feel comfortable depends far less on them being black than on their political philosophy in general. I hope you'll agree that "can" is a better word to use.

Even if many people believe that, it still doesn't take away from the fact that a strict constructionist used a strict constructionist argument to vote in favor of cases like Brown and Loving.




But, Hugo Black did not use a strict constructionist argument for his vote in Brown. If you look at interviews that he gave later on, as well as his private papers, it was based on . . . empathy. He has stated countless times that he grew up in the South and he knew that it was wrong, and it wouldn't have mattered if things were equal.

To be fair, that doesn't mean that he wasn't a strict constructionist. I just don't think Brown is a good example of that, given the circumstances under which it was written.

A better example would be Hugo Black's opinion in Engel v. Vitale, 370 U.S. 421---which invalidated a school prayer. Black's view was "no law" means "no law." If a policy promoted one religion, a few religions, or a family of religions, it would still be unconstitutional.

I will give you credit, though, for mentioning Hugo Black. A lot of conservatives tend to stay away from him, because most conservatives disagree with the outcome in a lot of his decisions.

One more thing--I'm kind of surprised that you didn't know the "democrat" party slam that many republicans started pulling a few months ago. It does undermine the credibility of your post. Not that my opinion matters much around here (since I'm a lurker for the most part), but I find many of your arguments "persuasive" in the sense that it won't necessarily make me change my mind, but it sound and well-reasoned. In fact, one of the arguments you made in the Heller discussion convinced me on the Second Amendment "right to bear arms," not in a textual or strict constructionist sense, but from John Marshall Harlan's "implicit in the concept of ordered liberty" approach. (And, for the record, I am a constitutional law geek and, a long time ago, spent a lot of time researching various issues for an article that included reviewing many justices private papers at the Library of Congress).

Even if many people believe that, it still doesn't take away from the fact that a strict constructionist used a strict constructionist argument to vote in favor of cases like Brown and Loving.
He also sided against the Japanese in regards to the internment camps.

And in my opinion, the dissent in Plessy v. Ferguson was much more "constructionist" than the majority opinion. The majority had to discount the text of the 14th Amendment, which spoke simply of "equal protection of the laws" as somehow protecting political equality without protecting social equality.
I don't see it that way at all. The majority opinion stated that there was nothing in the 14th Amendment that extended equality into social areas. Isn't that the same argument being used on the right for not allowing gay marriage?

The dissent (by another former KKK-er, oddly enough), said (in part):
But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.
That's a rather liberal view he takes. That decision would be considered liberal activism by today's standards. Like I said above, you could swap this out with gay marriage and make the same argument. Harlan is saying that all citizens are equal before the law but the other side is saying that there is nothing in the constitution that says that it counts in social matters. That the states have the right to make up their own mind there.

Nope. I don't even know where this comes from, unless you're once again using the words constructionist/conservative/right incorrectly and interchangeably. I will say that opposition to affirmative action can be found among those on the left as well, and it isn't limited only to those who are white.
I'm sure there are. But recent cases like Gratz vs Bollinger show that the right-leaning judges are much more likely to side against affirmative action. Considering Roberts and Alito are against it as well, would you really expect a black man who is schooled in constitutional law to vote for them? This all started because of a comment about Obama voting against those two. I would find it wrong for him to vote for them if his beliefs are strong.

Any reason you decided not to include Clarence Thomas in this sentence? Did it look absurd even to you? Yes, I am absolutely saying that a black man (or woman) for that matter can feel comfortable voting for someone like Alito or Roberts. I think I've been saying that for at least a page now.

Would you think less of a black person who supported Roberts or Alito?
Thomas is a little farther to the right than anyone else on the court. I mean this is a black man who dissented to the latest Voting Rights Act decision. It's safe to say he has a much different view of race relations in this country than most blacks.

But, Hugo Black did not use a strict constructionist argument for his vote in Brown. If you look at interviews that he gave later on, as well as his private papers, it was based on . . . empathy. He has stated countless times that he grew up in the South and he knew that it was wrong, and it wouldn't have mattered if things were equal.

To be fair, that doesn't mean that he wasn't a strict constructionist. I just don't think Brown is a good example of that, given the circumstances under which it was written.

A better example would be Hugo Black's opinion in Engel v. Vitale, 370 U.S. 421---which invalidated a school prayer. Black's view was "no law" means "no law." If a policy promoted one religion, a few religions, or a family of religions, it would still be unconstitutional.

I will give you credit, though, for mentioning Hugo Black. A lot of conservatives tend to stay away from him, because most conservatives disagree with the outcome in a lot of his decisions.

One more thing--I'm kind of surprised that you didn't know the "democrat" party slam that many republicans started pulling a few months ago. It does undermine the credibility of your post. Not that my opinion matters much around here (since I'm a lurker for the most part), but I find many of your arguments "persuasive" in the sense that it won't necessarily make me change my mind, but it sound and well-reasoned. In fact, one of the arguments you made in the Heller discussion convinced me on the Second Amendment "right to bear arms," not in a textual or strict constructionist sense, but from John Marshall Harlan's "implicit in the concept of ordered liberty" approach. (And, for the record, I am a constitutional law geek and, a long time ago, spent a lot of time researching various issues for an article that included reviewing many justices private papers at the Library of Congress).

Thanks Jon. I honestly don't pay much attention to the partisan bickering on both sides these days... with the exception of diving into the POL threads here at FOFC every now and then. :)

Most of my reading is news, not opinion, and I don't watch or listen to political talk shows (don't get me started on the Fox News lineup). The only blogs I read on a regular basis these days are Instapundit, the Volokh Conspiracy, various gun blogs, and the Campaign Spot. None of them really engage in the "nyah-nyah" back-and-forth name calling, which is why I've missed it.

I will say that after reading four years of "Rethuglican" comments, I don't really get the big deal about Democrat versus Democratic, but since I wasn't trying to piss someone off I don't mind apologizing. :)

When it comes to Engle v. Vitale, I don't have a problem with Black's reasoning, though I wonder what he'd think about how far we've taken the issue of banning prayer in school.

Anyway, thanks for the kind words and the food for thought. I'm going to do some more reading on Brown v. Board of Education after I get off the air tonight.

For what it's worth, I had no idea that Democrat was seen as such a bad word when referring to the party.

I wonder what you would have gotten if you used my preferred spelling of Demoncrat? :D

I've usually seen that as DemonRAT while browsing the Free Republic threads in horror. ;)

Honestly, I didn't even realize I typed that. Democratic party. Better?

Sure.

dola... I do believe that people should show their political opposition enough respect to refer to their party by its proper name. I'm still having trouble figuring out what's so demeaning about the phrase "Democrat Party" as opposed to "Democratic Party". Don't we call individuals "Democrats" and not "Democratics"?

'Democratic,' I would suggest, stands for the principles to which the party claims to adhere. Sorta like Christian as an adherent, and Christianity as the collective set of principles, y'dig? Would you shorten the reference to the religion because we call its adherents Christian? Or, heck - would it be legitimate to refer to, as a collective, the "Jew people" because we call an individual of that faith a Jew? Why call them the "Jewish people" and waste a perfectly good 'ish,' am I right?

Not to inject religion into a perfectly good political flamewar. Just saying, there are other examples of the principle I'm talking about here.

Just to be perfectly clear: I'm not flaming, using sarcasm, or any other verbal jousting tool. I'm just a little confused at the vehement reaction to a missing "ic".

As someone else pointed out, it's that most of the people who do that (and, to be honest, use that precise reasoning behind it), are doing it with asshattery aforethought and using that as kind of a "what, what'd I do?!" injured innocence defense.

Frequently - and not always, I realize this - the people who play the "We call them Democrats, not Democratics" card are the same people who use the pejorative shorthand "libs" in place of "liberals" to describe those of a particular ideology. It's as though a dismissive diminishment of the name automatically equals a diminishment of the principles they stand for.

It isn't so much a vehement response - I'm not stamping my feet and demanding you refer to them the 'right' way. Just pointing out that, for me, the use of 'Democrat Party' has the effect of causing me to take the Republican Party less seriously as a political entity. A little more on why that is in a bit.

But first, I'll take in good faith that you didn't mean it that way, and for anybody else who shares your honest curiosity as to 'why do we call the party one thing and the individuals another?' we'll have a history lesson - once upon a time, back in the early 1800s, there existed a party known as the Democratic-Republican Party. There was a falling-out after Monroe's Presidency, and Andrew Jackson took with him a large part of that group to form the Democratic Party.

Now, I'm not the most astute student of politics, but I would suggest that the name choice was a deliberate one, especially as the Democratic-Republican Party ended up disbanding much as the Federalist Party had before it. I would suggest that it was meant to be a familiar name to people who had been Democratic-Republicans before we went from Federalist/Democratic-Republicans to Democrats/Whigs (to, later, Democrats/Republicans). Sort of a security blanket. "Your party may not exist in body anymore, but in spirit, it lives on. Why don't you caucus with us?"

So that's where the name comes from. That's why, even though we refer to an individual as a Democrat, the proper reference for the party, if one is being polite or at least not deliberately antagonistic, would be the Democratic Party.

Jon's usage of Demoncrats, eh, that's also a pejorative, but at least it doesn't try to hide behind 'what? what am I doing wrong?' the way so many of those who insist upon 'Democrat Party' do. Basically, if you're going to belittle the other side, have the cojones to do it overtly.

Rush and Hannity use 'Democrat Party' in that way, even if they trot out the same 'but, but, we call the individuals Democrats' line. It's petty, childish, and smacks of the kid who wants to antagonize his brother but doesn't dare do it openly in case mom or dad threatens to turn the car around. Which, whatever, fine - but that's why I have a tough time taking seriously folks who use that turn of phrase.

And for what it's worth, if the Democrats were to try the same thing ("why do we call it the Republican Party? We live in a Republic, not a Republican!") I'd have a tough time taking them seriously, too. If it's absolutely imperative that I vote for one group of folks over another, name-calling, overt or subtle, isn't going to impress me. What you intend to do about the Momentous Issues That Make My Vote For You Imperative, on the other hand, that I'll listen to. I won't necessarily agree with it, but I'll lend a civil ear to a civil tongue.

Trying to hang your opponent with a pejorative, diminutive name just doesn't suggest to me that the person or group trying to push that name is taking those issues seriously at all. Those are playground games. If the population is stupid enough to vote for you because of how you refer to your opponent's party, I got news for you - they're stupid enough to vote for the other guys for far more asinine reasons. Is that really the sort of political engagement you want to encourage?

/rant

:)

Wikipedia actually has a pretty good writeup on the history of the whole "Democrat" thing. I had no idea it went back as far as it did. I thought it was largely a product of 2002-2006.

I wonder what you would have gotten if you used my preferred spelling of Demoncrat? :D

No way that's your preferred spelling. It's not nearly pejorative enough.

Would you shorten the reference to the religion because we call its adherents Christian

You mean like calling it "the Christian faith" ;)

All Things Considered had a funny interview with Senator Grassley last night. Grassley started off by saying he and other Republicans were concerned about the empathy thing, to which Robert Siegel responded: "What do we want? Callous judges who just disregard the impact of the law on people?"

Following-up, he also quoted Alito from his own nomination hearing: "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background, or because of religion or because of gender, and I do take that in to account." Siegel suggested that by Grassley's criteria, he shouldn't have voted for Alito.

Anyway, the end of the interview had Grassley sort of meekly saying that Sotomayor was positive and that if the things she said are merely political statements, and not reflected in how she works from the bench, he'll vote for her. Which I wasn't suggesting.

NPR won't have a transcript for a while, so there's just the audio clip (http://www.npr.org/templates/story/story.php?storyId=106561666).

So far, the most notable aspects of the hearings so far are:

1. Exactly how much of an idiot Jeff Sessions is making himself look

2. Lindsay Graham being the most "reality-based" senator in his comments so far, by saying that unless Sotomayor melts down, she'll be confirmed, because elections matter.

Honorable mention should go to Coburn saying she'll have "some splaining to do."

I'm so old I remember when the Republicans were trying to get a lock on a Latino majority.

Honorable mention should go to Coburn saying she'll have "some splaining to do."

Yeah, it would appear that Coburn is just using this opportunity to give a national platform for Pro-Life arguments, even going so far as saying "you don't have to answer this" to her.

I'm so old I remember when the Republicans were trying to get a lock on a Latino majority.

Wasn't that, like, 4 years ago? :D

I have not read this yet, but here's a link to a new article about Judicial Activism, trying to view it in an objective manner. This page is the abstract. Click on the link at the top of the page to download it.

SSRN-Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Courts of Appeals by Corey Yung (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1434742)

It's official: Senate Approves Sotomayor to Supreme Court - NYTimes.com (http://www.nytimes.com/2009/08/07/us/politics/07confirm.html?hp)