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Rosen on (Progressive) Judicial Minimalism and Obama:

The piece by Jeff Rosen that Orin links to below is interesting, and well worth reading, but the part about Obama's philosophy in appointing Justices is, in a word, fanciful. When Obama decided on his first Supreme Court nominee, he wasn't looking for the most distinguished appointment, the nominee most likely to create a new type of liberal judicial paradigm, or, for that matter, a judicial minimalist cognizant of the lessons of the past fifty years as elaborated upon by such brilliant liberal theorists as Jack Balkin, Barry Friedman, and Pamela Karlan. Rather, it's pretty obvious he went for what seemed to be the best political choice: a respected Hispanic woman with a compelling life story.

Sotomayor obviously has far more than the minimal paper qualifications to be a Justice, but no one I've spoken to, or for that matter read in print, has made the case that she is the best nominee to push forward any particular liberal agenda. Indeed, most observers seem to think she is less capable than her primary short-list competitors, and Obama did not have any of the many exceptionally well-qualified white males on that list.

Taking political considerations into account when appointing Justices is hardly unique to Obama. You'd be hard-pressed to find anyone who thinks that Harriett Miers, Clarence Thomas, David Souter, Anthony Kennedy, Sandra Day O'Connor, or John Paul Stevens were the most distinguished candidates available to the presidents who nominated them (and even Justice Scalia was chosen, in part, to woo the ethnic Catholic vote). The past four appointments, two by President Bush and two by President Clinton, were actually unusual historically in that the candidates selected were, in fact, arguably on any reasonable short list for the best available candidates. Selecting a merely excellent or very good candidate for political reasons is a reversion to recent historical norms.

But Rosen's piece reminds of something more broadly applicable to Obama supporters. Many of them seemed to hope and believe that Obama was destined to be not just a standard liberal Democratic president, but in some sense a transformative one, who would reinvent liberalism for the 21st century and bring it back to the political dominance it had between the New Deal and the 1960s. I've seen very little evidence that this is the case; Obama seems to be governing more like a reincarnated Tip O'Neil, sensitive primarily to the concerns of Democrats in Congress and various Democratic or potentially Democratic political constituencies, than like the visionary of liberal dreams. And the Sotomayor appointment is just additional evidence.

Related Posts (on one page):

  1. Rosen on (Progressive) Judicial Minimalism and Obama:
  2. The Constitution in Exile, Take 2:
Strict:
So Obama made this appointment to woo the female Puerto Rican vote in the 2012 presidential election?
5.31.2009 1:38pm
Tugh (mail):
Well, I think when you claim, without any proof whatsoever, that "most observers seem to think she is less capable than her primary short-list competitors" you would at least spell her name correctly. Also, I think it's an exceptionally weak claim that Sotomayor is in any way less of a "best available candidate" than Alito. Again, there is zero proof in your post, so it seems like you allow your biases cloud your judgment.
5.31.2009 1:42pm
DavidBernstein (mail):
Tugh, feel free to point me to all the commentators who BEFORE her nomination were arguing that Sotomayor was the most distinguished choice available (as opposed to the best choice for political reasons). Rosen certainly wasn't one of them.
5.31.2009 1:46pm
ruuffles (mail) (www):

So Obama made this appointment to woo the female Puerto Rican vote in the 2012 presidential election?

I wonder about that. Most commentators think Obama will get at least one more vacancy in his first term (Stevens or Ginsburg). Considering their ages, why not appoint someone like Wood, then Sotomayor in the next appointment? Either he doesn't want to risk not having another vacancy, or he's looking at the 2010 midterms (Florida senate comes to mind).
5.31.2009 1:48pm
ruuffles (mail) (www):
"their ages" means Wood, Sotomayor; not Stevens, Ginsburg
5.31.2009 1:53pm
Cato The Elder (mail):
I am reposting a similar comment from another thread because it is germane to the topic here:

[I agree there was a] political angle to the Sotomayor nomination. On Volokh itself I thought I perceived a distinct preference for Diane Wood's nomination amongst the usual leftists. Rosen came out early against Sotomayor and elucidated her faults in an effort to find the best liberal pick. About the Law's polling to divine its readers' preferences for the nomination was heavily in favor of Wood &Kagan, with Sotomayor running a distinct third. Don't pretend that this is simply an unwarranted presumption by me that she wasn't up to the admittedly high level of the other nominees. Sotomayor is perfectly qualified, but I worry about her kind of thinking and the implications that raises about the quality of her jurisprudence when she is not constrained by precedent and deference (indeed, she would make an excellent politician), and I worry about the kind of triangulating thinking that forms the basis of her nomination.
5.31.2009 2:02pm
flyerhawk:
I find it truly bizarre that Samuel Alito is considered to be a selection based purely on his accomplishments but Sonia Sotomayor can only be considered a political appointee when their 2 resumes are so strikingly similar.

This seems to me to be just another case of people presuming that anyone other than a white male is inherently inferior.
5.31.2009 2:03pm
DavidBernstein (mail):
Flyerhawk,

Obama has a deeper bench to choose from than Bush did, not least because his party has 59 Senate seats.
5.31.2009 2:06pm
kilgoretrout (mail):
David, I think Tugh is right to point out the similarities between Alito and Sotomayor. Neither were a highly distinguished circuit judge, though both were well-qualified and appealed to certain political constituencies: Sotomayor to Hispanics and women and Alito to the religious and conservative base of the GOP. To that extent, I think you are wrong to characterize Alito as the best qualified in terms of judicial pedigre. Don't you think that Luttig, McConnell, or Posner were more qualified?
5.31.2009 2:07pm
DavidBernstein (mail):
Posner is not a judicial conservative, (and it's not clear that he's a conservative at all, given what he's written recently) plus he was too old. McConnell and and Luttig would be on any reasonable short list, too. I don't necessarily think Breyer and Ginsburg were the "best" choices Clinton could make (actually, I was hoping for Judge Arnold), but they were certainly obvious short-list material.
5.31.2009 2:18pm
Federal Dog:
"So Obama made this appointment to woo the female Puerto Rican vote in the 2012 presidential election?"

No, the female and Hispanic vote.
5.31.2009 2:19pm
flyerhawk:
David,

That is true. However it is possible that Obama wasn't willing, for whatever reason, to break out a heavy hitting liberal.
5.31.2009 2:23pm
DavidBernstein (mail):
Oh, and if Bush were really out to please the conservative and religious base, the obvious choice was Janice Brown, Alito certainly didn't arouse opposition, but I don't think he exactly generated wild excitement either. Of course, political consideration always play some role in who ultimately gets selected. My point was more that I don't believe that Sotomayor would have been on the short list to begin with but for political considerations even though she is clearly well-qualified to be on the Supreme Court. That's actually better than some of the other "political" Justices I mentioned, e.g., Souter, who were not unqualified to be on the USSC, but I wouldn't say were "clearly well-qualified," either.
5.31.2009 2:25pm
einhverfr (mail) (www):
Flyerhawk:


This seems to me to be just another case of people presuming that anyone other than a white male republican is inherently inferior.


FIFY.....

Really, this seems like party politics as usual. And I actually was in favor of Miers' confirmation.....
5.31.2009 2:27pm
LTR:
Obama didn't try to please Hispanic voters with Sotomayor pick - 80% of Hispanic voters (or any other voters) couldn't name three SCOTUS Justices if their life depended on it and by the next election they'll forget Sotomayor too. He was primarily pleasing Hispanic special interest groups &feminist special interest groups.

I think he picked Sotomayor now so he can have more freedom when the next SCOTUS vacancy emerges. And it will emerge, I don't think both Stevens and Ginsburg can hold on until 2012. Then Obama might go creative and pick Sunstein or someone like that.
5.31.2009 2:27pm
Oren:

Oh, and if Bush were really out to please the conservative and religious base, the obvious choice was Janice Brown

Sounds like a good way to get 40 Dems behind a filibuster to me. He was lucky to get her on the CA in the first place.
5.31.2009 2:28pm
einhverfr (mail) (www):
Something funny from the original post:

The past four appointments, two by President Bush and two by President Clinton, were actually unusual historically in that the candidates selected were, in fact, arguably on any reasonable short list for the best available candidates.


Prof. Volokh has already said everything that is needed here....
5.31.2009 2:29pm
Leo Marvin (mail):
DavidBernstein:

Tugh, feel free to point me to all the commentators who BEFORE her nomination were arguing that Sotomayor was the most distinguished choice available (as opposed to the best choice for political reasons). Rosen certainly wasn't one of them.

Rosen wasn't, but at least one commentator of note seems convinced Sotomayor belongs in the same category as Alito. (No, he didn't say it before the nomination, but in light of his political leanings, I think it's fair to rule out bias as the basis for his assessment.)
5.31.2009 2:36pm
einhverfr (mail) (www):
BTW, I always wait for the confirmation hearings to lend my hand in support or opposition.
5.31.2009 2:36pm
LTR:
Re qualifications:

Ginsburg, Breyer, Roberts, Alito and now Sotomayor were all "reasonable shortlist" choices but not clearly head and shoulders above competition (Stevens and Kennedy could be added to that list). O'Connor, Souter and Thomas were pulled from relative obscurity and clearly weren't TOP 10 material altough I would say that Thomas is doing just fine for last 18 years.

Last person to be nominated for his general awesomeness was Benjamin Cardozo.
5.31.2009 2:41pm
Floridan:
DB: ". . . no one I've spoken to, or for that matter read in print, has made the case that she is the best nominee to push forward any particular liberal agenda."

And yet there is so much angst among the conservatives over her nomination. If not her pushing a liberal agenda, then what else has cause the pitchforks and torches to be brought out?
5.31.2009 2:42pm
einhverfr (mail) (www):
Foridan:

And yet there is so much angst among the conservatives over her nomination. If not her pushing a liberal agenda, then what else has cause the pitchforks and torches to be brought out?


Not qualified to further the liberal agenda enough to justify the political capital of a filibuster, perhaps? How horrible that Obama wouldn't pick the most progressive judge he could find and thus avoid an all-out showdown!
5.31.2009 2:47pm
loki13 (mail):
Prof. Bernstein,

I have a few quibbles with your post.

1. I think you can arguably make the case that 3/4 last Justices (Ginsburg, Breyer, and Roberts) were clearly on the hypothetical "short short list" (as opposed to the short bus) of SCOTUS nominations. All three were amazingly qualified.

2. I think that putting Alito in with those three is not quite correct. Perhaps it is a distinction between the "short short list" and the "short list" or however you'd like to make it; but while Alito was certainly well-qualified, he was not a name on the tip of anyone's tongue until he was floated. He is, in that sense, very similar to Sotomayor. An exceedingly qualified and capable jurist who should be an unproblematic pick for SCOTUS, if not necessarily a "superstar" like Roberts or Ginsburg. (Please note how rarefied this company must be considering Sotomayor's credentials).

3. I think you might be missing the transformative nature of the pick for some. While people might decry "identity politics" and some (like you) seem to see it as a mere "political pick" I would make the following observations:
a. I doubt that it is a political pick. In terms of electoral politics, the race/gender of the SCOTUS pick doesn't matter very much. The only way this could play out electorally is if the GOP makes the (IMO) poor decision to turn a foreordained conclusion (her confirmation) into an opportunity to portray themselves as the anti-woman, anti-hispanic party. In short, there's a rope, and no need to hang yourself on it. AKA, no big deal.
b. I don't think the "identity politics" is the right way to look at this either. Throughout history, SCOTUS has been the province of white men. There have been two women. There have been two non-whites. That's approximately 97% white men. There are many "qualified" white males, and there have been throughout history. Same with minorities. Same with women. I don't think there should be quotas, or set-asides, or white men should be discriminated against. But I think that elevating the first (qualified!) female minority to SCOTUS is something special. Even a little transformative.
5.31.2009 2:48pm
LTR:
I don't know why many people think that Roberts was somehow more qualified than Alito. Sure, Roberts has a sexy 26-13 (or something like that) appearing before the Court but Alito spent 16 years as an appellate judge before being nominated while Roberts spent only 2.
5.31.2009 2:52pm
Celia:
Indeed, Floridan. I first heard about Sotomajor as the go to candidate a year ago, so she was on "everyones" short list.
5.31.2009 2:55pm
Glen Alexander (mail):
A reincarnated Tip O'Neil? I hadn't thought of Obama that way, but I think you've nailed him.

And not only is Posner no variety of conservative, he's also remotely unqualified by temperament to hold any judicial post. Period.
5.31.2009 3:01pm
ruuffles (mail) (www):

were clearly on the hypothetical "short short list" (as opposed to the short bus) of SCOTUS nominations

I will be stealing that comparision. Thanks.
5.31.2009 3:01pm
Barbra:
You are right re Roberts, LTR. Alito is just the most recent (and up for the same job, not that there is much difference between AJ and CJ).
5.31.2009 3:01pm
DavidBernstein (mail):
And yet there is so much angst among the conservatives over her nomination. If not her pushing a liberal agenda, then what else has cause the pitchforks and torches to be brought out?
They see an opportunity to rile up their base, and get donations if they are organized interest groups. It's not at all clear to me that there is any give issue on which we have reason to expect that Sotomayor will be more liberal than others Obama might have selected, and there is some reason to believe that she will be less of an intellectual leader, and also less persuasive personally. So, again, a perfectly reasonable, competent, highly qualified choice, but surely not the choice Obama would make if his priority was to do what Rosen suggests, reinvent judicial liberalism. If his priority was, as Loki suggests, to make a "transformative" appointment, that's all well and good, but still has nothing to do with what Rosen suggests.
5.31.2009 3:02pm
Sarcastro (www):
[DavidBernstein is right. I've heard no one argue Sotomayor would do anything other than decide cases. We could have had someone who was a force for her philosophy, but I guess not. I love how she came up through the ranks step by step, without skipping steps. Still, she's more workmanlike than leaderlike. An Alito, not a Roberts.

Still, deciding correctly is something, and perhaps she'll surprise conventional wisdom.

LTR, did you listen to the confirmation hearings for Roberts and Alito? One was an advocate, the other was a soldier.]
5.31.2009 3:02pm
Quixotic (mail):
Jack Balkin is brilliant? Who knew?
5.31.2009 3:03pm
Dave N (mail):
Taking political considerations into account when appointing Justices is hardly unique to Obama.
I agree. Indeed, choose a a Supreme Court nomination at random (save, perhaps, Cardozo) and you will see calculation (political and otherwise) on the part of the President.

Abraham Lincoln got rid of a political rival, Salmon Chase, by making him Chief Justice; LBJ wanted to put an exclamation mark on his civil rights legacy by naming Thurgood Marshall to the Court to one seat and a political crony, Homer Thornberry, to another; Richard Nixon figured a young conservative with a minimal paper trail, William Rehnquist, was a good choice after the failed nominations of Clement Haynsworth and G. Harrold Carswell; etc. etc.

Am I excised that President Obama chose a Latina judge? No more than I was that President Bush chose a conservative black judge.

I agree with einhverfr that we should wait until the actual confirmation hearings and see what develops.

And frankly, if nothing disqualifying develops at the confirmation hearing, Judge Sotomayor should be confirmed. Elections have consequences--and one of them is the President gets to name judges, who themselves should be given a rebuttable presumption in favor of confirmation.
5.31.2009 3:08pm
Ken Arromdee:
Obama didn't try to please Hispanic voters with Sotomayor pick - 80% of Hispanic voters (or any other voters) couldn't name three SCOTUS Justices if their life depended on it and by the next election they'll forget Sotomayor too. He was primarily pleasing Hispanic special interest groups &feminist special interest groups.

These are not contradictory. He pleases the special interest group, the special interest group loudly proclaims that we have a Hispanic justice, and Hispanic voters hear about it even though they otherwise don't pay attention to the Supreme Court.
5.31.2009 3:08pm
einhverfr (mail) (www):
LTR:

I don't know why many people think that Roberts was somehow more qualified than Alito. Sure, Roberts has a sexy 26-13 (or something like that) appearing before the Court but Alito spent 16 years as an appellate judge before being nominated while Roberts spent only 2.


I agree with Sarcastro (great pun on the name of Die Zauberflute character, btw) here.

If you listen carefully to the confirmation hearings, you get the impression that Roberts was willing and able to discuss precedents, how and why the court came to a given conclusion, etc. It seemed at the time (and I think this has been borne out) that he would be a measured advocate for the proper scope of the opinions. Alito, OTOH, seemed to be interested in talking code to political conservatives, which is what I found troubling about his appointment. Now, Alito and Roberts agree with eachother a lot, but I have noticed what appears to be a sharp increase in agreement on the court (up to and including unanimous decisions) in general since Roberts' confirmation. I think this is a different form of influence.

Now, on Alito's side, I think he has done better than I was afraid he might. However, the confirmation process did raise a number of questions to my mind as to whether he was qualified to impartially interpret the laws and the Constitution.

One thing we have to remember is that presidents have hidden agendas in supreme court appointments and often what they say and what they appear to be doing are different than what they actually do.
5.31.2009 3:14pm
LTR:
@Sarcastro

I would rather say that Roberts was a smart, popular kid while Alito was.. well, nerdy.
5.31.2009 3:14pm
Dave N (mail):
Before I get flamed, I will note that President Nixon nominated Harry Blackmun after the failed Carswell nomination. William Rehnquist was originally nominated to succeed Justice John Marshall Harlan II.
5.31.2009 3:18pm
Kirk:
Oren,

Yes, but the spectacle the Dems filibuster a black female nominee would have been wondrous to behold.

Quixotic,
... brilliant? Who know?
Well, surely his mother, for starters.
5.31.2009 3:19pm
Leo Marvin (mail):
einhverfr,

Now, Alito and Roberts agree with eachother a lot, but I have noticed what appears to be a sharp increase in agreement on the court (up to and including unanimous decisions) in general since Roberts' confirmation. I think this is a different form of influence.

I don't know if the numbers bear that out, but even if they do, this would be the first time I've heard anyone suggest Roberts may be a more effective consensus builder than Rehnquist was.
5.31.2009 3:22pm
Constantin:
I find it unsurprising that for all the explicit talk in the campaign about Obama getting us past racial politics, he turns around and picks someone whose racial statements are as distasteful (or at the very least, improperly put, as the president himself has conceded) as those of anyone else a Dem president conceivably could have picked.

Like so much else in the Obama campaign, as those on the left and right are finding out, the "racial transformation" stuff was a first class con job.
5.31.2009 3:24pm
frankcross (mail):
I don't think that there is any clear measure of qualifications to serve on the Supreme Court. For example, there is a credible argument that political experience, beyond the judicial is an important qualification. Among clear conservatives, I think there is a strong argument that Easterbrook would be the most qualified on pure legal grounds, but I'm not aware that he was a strong candidate.

That said, I think that political considerations play an enormous role in selections. They were certainly central to the O'Connor and Thomas selections. And political confirmability is obviously important. This was most obvious for Blackmun and Souter, and I think the choice of Roberts and perhaps Alito was affected by this as well.

I'd also note that many liberals realize that the Warren Court was sui generis and will not recur. So there is less desire for strong activist liberals on the Court.
5.31.2009 3:24pm
Harold Kovins:
Robert is clearly in a league apart from Alito.

Roberts was widely considered the finest Supreme Court advocate of his generation and a very well regarded judge in the most respected federal circuit. Alito was a solid, but unremarkable, judge on a credible, but second tier circuit.

Roberts clerked for Friendly (widely considered one of the greatest, if not the greatest, circuit court judge ever) and then on the Supreme Court for Rehnquist. Alito clerked for a respectable but unremarkable appellate judge, and nothing more.

Roberts was a principal deputy SG, Alito was an assistant SG. (The difference in rank is quite significant, although, again, we're not comparing a Lexus and a Corolla, but two Lexuses. Or something like that.)

Roberts was a partner at Hogan &Hartson and head of their appellate practice. Alito was US Attorney for New Jersey. That round is probably a push in terms of overall prestige, but in terms of what qualifies one to be a Supreme Court justice, I would say it goes to Roberts.

Roberts was an adjunct professor at Georgetown. Alito was an adjunct professor at Seton Hall. Again, round to Roberts.

Finally, you can't discount the fact that Roberts is eloquent, charismatic, and physically attractive. These aren't qualities that manifest themselves in written opinions, but they matter to being an effective justice. Alito is plainspoken, shy, and a little nebbish.

Again, this is not to say Alito is unqualified to be a justice, but he's not in the same league as Roberts. The comparison between him and Sotomayor is a good one, although I think his credentials are slightly stronger than hers. (The Second Circuit trumps the Third, but other than that her career is pretty unremarkable -- assistant D.A., irrelevant law firm doesn't match up to assistant SG, US Attorney -- and she didn't clerk.) I would say that both Alito and Sotomayor belong to the category of solid and very credible circuit court judges.
5.31.2009 3:32pm
Sarcastro (www):
[Take it from one of the nerdy kids. Popularity = power to persuade.]
5.31.2009 3:43pm
Cato The Elder (mail):
The reason I angst over Sotomayor is that I fear she'll be very amenable to quotas, which I think will destroy the country. Otherwise, I wouldn't much care. She doesn't seem to be an expansive theorist, as others have noted.
5.31.2009 3:44pm
first history:
Sotomayor obviously has far more than the minimal paper qualifications to be a Justice, but no one I've spoken to, or for that matter read in print, has made the case that she is the best nominee . . . . Indeed, most observers seem to think she is less capable than her primary short-list competitors, and Obama did not have any of the many exceptionally well-qualified white males on that list.

Apparently one group saw her as potential SC material—Republicans in 1998:


. . . .Republican senators have been blocking Judge Sotomayor's elevation to the appeals court for a highly unusual reason: to make her less likely to be picked by Mr. Clinton for the Supreme Court, senior Republican Congressional aides said in interviews.
....
Senate Republican staff aides said Trent Lott of Mississippi, the majority leader, has agreed to hold up a vote on the nomination as part of an elaborate political calculus; if she were easily confirmed to the appeals court, they said, that would put her in a position to be named to the Supreme Court. And Senate Republicans think that they would then have a difficult time opposing a Hispanic woman who had just been confirmed by the full Senate.

''Basically, we think that putting her on the appeals court puts her in the batter's box to be nominated to the Supreme Court,'' said one senior Republican staff aide who spoke on the condition of anonymity. ''If Clinton nominated her it would put several of our senators in a real difficult position.''


They were only off by 11 years.
5.31.2009 3:44pm
Richard Riley (mail):
My friend Pam Karlan is brilliant by anybody's measure so I assume David is being straight in so characterizing her, Balkin and Friedman.

David, I agree with your post here with regard to Supreme Court appointments - but more broadly I don't agree Obama is just a Tip O'Neill-type interest-group Democrat. Obama is a good bit to the right of that - which is fine with me. Admittedly the structure of the car bailout is too easy on the UAW which I'm not happy about, but in what way are Tim Geithner, Larry Summers, Robert Gates and Jim Jones the reincarnation of 70s-style interest-group liberalism or Tip O'Neillish foreign policy leftism a la El Salvador, Nicaragua etc?
5.31.2009 3:44pm
dmv (www):
I think it's funny that it has to be said out loud that political considerations go into a Supreme Court pick, as though that weren't equivalent, in terms of trenching on Captain Obvious' domain, to saying that humans need food to live.

The decision is taken by, you know, the political branches...

Which are run by... politicians...

You see where I'm headed with this...
5.31.2009 3:57pm
MarkField (mail):

Jack Balkin is brilliant? Who knew?


Anyone who reads a fair sample of his writings.
5.31.2009 3:59pm
concerned:
Pam Karlan (or Kathleen Sullivan) will never be nominated to the Supreme Court. If you think the fight over a Hispanic nominee is over the top, nominating a lesbian will ignite a firestorm that will drive the Democrats out of power for years.
5.31.2009 4:01pm
Michelle Dulak Thomson (mail):
Can anyone with better knowledge of the history clarify exactly what happened to Miguel Estrada's nomination to the D.C. Court of Appeals? I remember his being filibustered, and the subsequent disclosure of internal memos (Democratic Party? Senate Dems? I don't remember) flagging him as especially dangerous since, as a Hispanic with a (where have I heard this phrase before?) "compelling life story," he mustn't become an Appeals Judge because then it was then one short step to SCOTUS, and who could deny the First Hispanic Justice?

On This Week, this morning, we had Sens. Schumer and Cornyn — the former being coy, the latter hitting rather hard. Schumer's point seemed to be that Estrada wasn't a judge, so he couldn't be evaluated on his judicial record; and he [Estrada] also refused to answer questions about how he would rule on possible future cases. The business about the internal memos regarding talented Hispanic with compelling life story: dangerous he didn't talk about, of course, but he did that unusually deftly. For a NY Senator, at least ;-)
5.31.2009 4:04pm
Barbra:
Tip O'Neill? Other than being successful politicians, the comparison is dreadfully weak.

As for Roberts vs Sotomayor, her experience as a trial Judge makes her much more qualified than he, or indeed any of the current sitting justices.

{In conference: "I once was the trial judge in a case where . . ."}
5.31.2009 4:04pm
LTR:
@Harold Kovins

You do make some very good points, however I'd still give Alito a tie based on his superior judicial experience. There's no doubt Roberts was a more accomplished attorney though.

Difference between them is really the fact that Bush 41 managed to get Alito confirmed to Third Circuit and failed to get Roberts confirmed to D.C. Circuit. If opposite happened, maybe Alito would make a name for himself in private practice like Roberts did.

Some of your other arguments I don't care that much for. I consider "who-clerked-for-who" stuff marginally relevant and I don't think good looks and oratorical skills are all that important for a SCOTUS Justice. Clarence Thomas barely ever speaks from the bench and nobody ever confused him for Denzel Washington, but I think he's been one of the most principled and consistent Justices ever.
5.31.2009 4:07pm
Leo Marvin (mail):

I'd also note that many liberals realize that the Warren Court was sui generis and will not recur.

Says you. Right after single-payer universal health care we raise the number of justices to 13. Bwaaahahahaaa!!!
5.31.2009 4:08pm
dmv (www):

...but I think [Clarence Thomas has] been one of the most principled and consistent Justices ever.

I agree with that assessment, actually. Just turns out that I pretty much universally disagree with him. :)
5.31.2009 4:10pm
Leo Marvin (mail):
Sarcastro,

Take it from one of the nerdy kids. Popularity = power to persuade.

But there's sweet revenge in The World of Warcraft.
5.31.2009 4:12pm
cboldt (mail):
-- I always wait for the confirmation hearings to lend my hand in support or opposition. --
.
I was strenuously opposed to Miers based on shortage of record. It's wrong to subject the public to a pick that lacks a substantive record on which to base an evaluation. As time when on, and her ABA writings and legal philosophies peeked out, I continued my objection. Ultimately, I saw the Miers pick as cronyism.
.
Offered just as example of my inclination to form an opinion based on available evidence and/or circumstances; and willing to reach an ultimate conclusion in advance of hearings. The hearings are generally scripted/contrived shows.
5.31.2009 4:13pm
Constantin:
Ultimately, I saw the Miers pick as cronyism.

I saw it as temporary insanity. I would wait in line like a Harry Potter fan to buy a book about how in the world that was allowed to happen.
5.31.2009 4:32pm
Oren:
Michelle, that is basically correct. Estrada was held us for the DC circuit to prevent him from becoming a SCOTUS nominee. Solid forward-thinking tactical analysis on the part of Senate Democrats, I might add.
5.31.2009 4:39pm
Brett Bellmore:
The Miers pick wasn't just cronyism, it demonstrated that Bush didn't even run to reliably conservative cronies.
5.31.2009 4:45pm
Yao (mail):
Michelle: Off topic much? And why should Schumer be responsible for something allegedly written by one of Durbin's staffers? Are your italics meant to imply a verbatim quotation?
5.31.2009 4:50pm
Michelle Dulak Thomson (mail):
Oren,

The noteworthy thing about Schumer's performance this morning was that he seemed to say that, "Hey, we can't give this guy a judicial position; he has no judicial record!" Those of us with more humble roles in life than "Senator from NY" are familiar with the most menial positions advertised being tagged "experience required." There were apparently people who wanted it to be impossible for Estrada to acquire a "judicial record, since so long as he hadn't got one the fact could be used to prevent his advancing.

And the fact that the "solid forward-thinking tactical analysis" directly disadvantaged an extremely well qualified candidate on the basis of his minority ethnicity bothers you not at all?
5.31.2009 4:56pm
einhverfr (mail) (www):

The Miers pick wasn't just cronyism, it demonstrated that Bush didn't even run to reliably conservative cronies.


Why I supported Miers. I saw her as reasonably middle-of-the-road.
5.31.2009 4:57pm
einhverfr (mail) (www):

Finally, you can't discount the fact that Roberts is eloquent, charismatic, and physically attractive. These aren't qualities that manifest themselves in written opinions, but they matter to being an effective justice. Alito is plainspoken, shy, and a little nebbish.


I generally felt that Roberts' eloquence did come across in his written opinions.
5.31.2009 5:02pm
OrinKerr:
Harold Kovins,

I'm fascinated by the idea that you compare the qualifications of Roberts and Alito based on matters like the rank of the schools where they were adjunct professors, the prestige of the circuit on which they sat, or which position in the SG's office they held. I don't disagree with the basic conclusion that Roberts has a particularly dazzling resume, but I wouldn't have thought to consider these particular details that you consider important.

For example, anyone of the Roberts/Alito tier can get a job as an adjunct wat whatever school they want: It just so happened that Gtown is the nearest school to where Roberts worked and Seton Hall is the nearest school to where Alito worked. It's not like they were applying for top adjunct positions and those were the best schools that would accept them.
5.31.2009 5:04pm
einhverfr (mail) (www):

As time when on, and her ABA writings and legal philosophies peeked out, I continued my objection.


The big thing that I thought was interesting in comparing Miers' and Alito's testimony is that Miers seemed more open to other ideas than Alito. My initial impression was that she was probably going to be judicially similar to O'Connor though probably not quite to the same caliber. In particular, her carefully worded responses regarding abortion suggested that she favored continuing with the Casey standard.
5.31.2009 5:10pm
Michelle Dulak Thomson (mail):
Yao,

Michelle: Off topic much?

If you say so. Stephanopoulos this morning didn't seem to think that Cornyn's comments on Estrada and Thomas, and the Democrats' reactions to those nominations, were entirely unrelated to the Republican reaction to Sotomayor. The memos that came to light after the Estrada filibuster, which Cornyn alluded to this morning and Schumer didn't exactly deny, suggested that had he gotten the D.C. judgeship it was possible that he (courtesy of GWB) might have been the first Hispanic Supreme Court Justice. There seems to have been some anxiety that a wise Latino, full of rich experiences and obviously brilliant, would be hard to deny a spot on the Supreme Court should he be nominated.

And why should Schumer be responsible for something allegedly written by one of Durbin's staffers? Are your italics meant to imply a verbatim quotation?

No, of course, they weren't; if I'd meant to imply a verbatim quotation I would've used, y'know, quotation marks.

Schumer is not "responsible" for anything someone else wrote; OTOH, he certainly led the charge to torpedo Estrada, and he did not directly contradict the charge this morning that internal (Party? Senate Dem? still not sure) memos labeled Estrada especially dangerous because he was (and Cornyn made the parallel explicitly this morning) a Hispanic with a compelling life story.

There: No quotation marks, no italics. This is paraphrase only, and I freely concede that I was pretty groggy at 8:15 this morning.
5.31.2009 5:19pm
Cornellian (mail):
The Miers pick wasn't just cronyism, it demonstrated that Bush didn't even run to reliably conservative cronies.

I imagine Bush was pretty confident that she would be highly deferential to the executive branch, at least so long as Bush was in office.
5.31.2009 5:41pm
SamW:
Yes, Michelle, OT, but its somewhat ironic that the reason you decry for keeping someone of the appellate bench is the same ones the Republican's used to keep Sotomayor off the appelate bench for a year. She just did not quit like Estrada.
5.31.2009 5:45pm
Michelle Dulak Thomson (mail):
I ought to have added that Schumer this morning, claiming that Ricci proved that Sotomayor showed "judicial restraint" rather than "judicial activism" because her opinion upheld what a municipality had done, was a particularly lame performance. Anyone who thinks that we have state and federal laws, and 50 state and one federal constitutions, and has wrapped his/her head around the nearly-200-year-old idea of judicial review, accepts that there are some laws that, on the basis of existing law and legal procedure, can't be allowed to stand. Schumer knows that as well as I do, so why trot this out now? He made no attempt to defend the ruling; all he said was that Sotomayor and colleague upheld what the city had done, so obviously this was "judicial restraint." H really cannot be that stupid, and I rather resent the alternative explanation, which is that the rest of us are.
5.31.2009 5:46pm
Michelle Dulak Thomson (mail):
SamW,

This is the first I've heard of this. Is there documentation? I mean, are there Republican memos that have come to light saying "Don't appoint that Puerto Rican woman, or next thing you know she'll be on the Supreme Court"? Was she filibustered as Estrada was?

I'm asking in all innocence, because IANAL,and frequenting the likes of VC and Althouse doesn't make me even the palest facsimile of one.
5.31.2009 5:51pm
Moneyrunner43 (www):
I'm intrigued by the support of Sotomayor on the basis of her qualifications. What is it about her tenure on the court or her legal opinions that make people come to that conclusion? I'm not a lawyer so I'm not sure how lawyers judge their fellow lawyers. Is being reversed 50% or 60% (depending in which source you use) a positive or negative qualification? Her detractors consider it a problem, her supporters call this a great record.

I'm interested in the comments here.
5.31.2009 6:47pm
Oren:

And the fact that the "solid forward-thinking tactical analysis" directly disadvantaged an extremely well qualified candidate on the basis of his minority ethnicity bothers you not at all?

Politicians making political decisions for political reasons doesn't bother me, no.
5.31.2009 6:49pm
Oren:

Is being reversed 50% or 60% (depending in which source you use) a positive or negative qualification?

The SCOTUS reverse ~2/3rds of opinions for which it has granted cert (not surprisingly, cert doesn't issue when the SCOTUS thinks the lower courts are doing it right). Her record is therefore better than average.

Of course, for a sample size of 5, it's nuts to draw conclusions.
5.31.2009 6:50pm
Moneyrunner43 (www):
Ann Althouse remarks that racism if pervasive in law school and she should know.

Racial Talk in the Academy - Sotomayor fits right in.


We nurture racial analysis. We create a school of thought and hire people to write about Critical Race Theory. What Sotomayor said was actually a weak, feel-good version of the kind of racial talk that is widespread in the legal academy.



Althouse suggests

Still, those who want law to be color-blind have an fine opportunity to play off that quote. Whether calling Sotomayor a "racist" is the best rhetoric is another matter. I would recommend characterizing Sotomayor's thinking as "racial" (rather than racist). And lets have a real debate about whether law and public policy should have a racial or a color-blind character. It's an important issue, and it can be used to define Obama in contrast to whatever 2012 candidates the Republican Party may produce.


Parts of the famous talk to La Raza in 2001 reveal something that is even more interesting:


Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address.


Rather reminiscent of bigots in of not long ago ascribing differences in mental processes in different races and genders. And to think that poor president of Harvard (what was his name … Larry Summers?) was run out of Cambridge for hinting at that.
5.31.2009 6:56pm
Moneyrunner43 (www):
So Oren, that makes her reversal record better than average. How does that compare to other Supreme Court nominees? Just for comparison's sake.
5.31.2009 6:58pm
Michelle Dulak Thomson (mail):
Oren,

Politicians making political decisions for political reasons doesn't bother me, no.

This isn't a "gotcha" question but an honest inquiry: If the "political reasons" involved people potentially voting against a racial/ethnic minority or a woman on grounds of race, ethnicity, or gender, rather than hesitating to vote against the same person on the same grounds, would you be equally unbothered?

That is, to be unambiguous: Would you have no problem with a President or the Senate actually preferring white male candidates for appellate judgeships, or is it merely OK to dis-prefer minorities and women who are especially talented but ideologically incorrect, because the weak brethren might eventually vote on race/gender grounds to put these people on the Supreme Court? The hair to be split here seems to me awfully fine, but I haven't had a lifetime-s training in the process.
5.31.2009 7:14pm
Sarcastro (www):

Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address.


As you can all see from the bolded part of this quote, she's not even racial, she's cultural! Culture is so much more insidious cause you can't even tell one from another just by looking.
5.31.2009 7:15pm
rosetta's stones:

Why I supported Miers. I saw her as reasonably middle-of-the-road.


einhverfr, don't you think at least some experience in this arena is a must? It is the USSC, afterall, not some cowtown courthouse.

I don't see anybody much attacking Sotomayor's qualifications, because she actually has some, and they've survived enough days worth of internet parsing and scrutiny for us to know she's gonna get the job, even if she's engaged in some racially charged rhetoric. Miers was shot down summarily, because she had little to show in terms of qualifications. Good.
5.31.2009 7:23pm
loki13 (mail):
Moneyrunner43,

I think you miss the Oren's point. The cite for reversals being trumpeted is either disingenuous or an outright attempt to muddy the waters among people who don't know any better. SCOTUS has a discretionary docket- IOW, they chose cases that are likely to lead to reversals (2/3 of the time). Sotomayor has authored (I believe- check my sourcing) 150+ (civil only) or close to 400 (combined) opinions. Of those, 5 (or 6, again I haven't fully vetted this) have been "certed". She has a reversal rate under the norm of 2/3. But even if it was at, or slightly higher, than the norm, it would be near meaningless considering the sample size.
5.31.2009 7:26pm
SamW:
Michelle see here
5.31.2009 7:28pm
cboldt (mail):
-- Is being reversed 50% or 60% (depending in which source you use) a positive or negative qualification? --
.
Reaching an opinion as to legal prowess (or integrity) on the basis of reversal rate implies the assumption that the reviewing court has used the better legal reasoning. This is not always the case, although the reviewing court always has superiority of power. The only reliable method of obtaining an informed opinion is to review each of the cases in some detail, sometimes including a review of the factual record at the trial level to see if the reviewing court is playing monkey business there.
.
There's no reliable shortcut.
5.31.2009 7:34pm
Michelle Dulak Thomson (mail):
SamW,

I see. Yep, the same dirty calculus, on the other side. Of course, this was a refusal to get the nomination even get out of committee, not a filibuster; I doubt that the Republicans in 1998 could've filibustered her.

The real news in that NYT piece is the idea that Stevens was expected to retire more than a decade ago. Golly.
5.31.2009 7:46pm
rosetta's stones:

"Obama seems to be governing more like a reincarnated Tip O'Neil, sensitive primarily to the concerns of Democrats in Congress and various Democratic or potentially Democratic political constituencies, than like the visionary of liberal dreams."


I have to agree with this, and I don't see anything transformative about Obama so far. He's just going with the flow (That's good in many ways... the best thing he could do about the Dear Leader's recent nuke tantrum is to sit back, fire up a Marlboro or otherwise, and wait.)

The automotive bailouts are pure Tip O'Neil politics, although Obama has extrapolated a fair bit from Tip's Chrysler handmaiden 30 years ago, but that's a creature of this Congress, itself following Tip's credo of all politics being local.

The stimulus wouldn't have gone through without Congress' approval, and they'da given it to Bush as well, who would also have gone along with it of course.

Sotomayor's was an affirmative action nomination, chromosomes and skin pigmentation being first order discriminators in contemporary liberal politics. Nothing new here.

Obama and Holder appear to be affirming most or all of Bush's terrorism policies, but that too is coming at Congress' behest, as Pelosi and Levin have both signed off on this tack. Tip O'Neil, too, never allowed his political position to be undermined, he only acted when he had support, and his side was blameless and united. Pure Tip, here, he'da ignored the BDSers in a heartbeat if it was politically advantageous, much like Pelosi and Obama are.

In 1976-77, Tip warned Jimmuh Cahtuh, and Jimmuh didn't take the warning, and suffered the consequences. Obama's warning may not come for a while, as he's still basking in the savior glow, but I'd be surprised if he didn't get one at some point soon here. The Congress is the first branch of government, and it's only a matter of time before they make that clear to him.
5.31.2009 7:57pm
pluribus:
Dave N:

Abraham Lincoln got rid of a political rival, Salmon Chase, by making him Chief Justice;

False. I think you may have repeated this untruth before. Chase was appointed to the Court only AFTER Lincoln won relection, and the appointment did not take Chase out of politics. In fact, he continued to aspire to the presidency until his death. Lincoln appointed Chase for the very simple reason that, despite his almost constant political maneuvering (much of it against Lincoln himself), Lincoln thought he was the best man for the job. See Lincoln and the Court by Brian McGinty (2008, Harvard University Press.)
5.31.2009 7:58pm
Jason F:
When Obama decided on his first Supreme Court nominee, he wasn't looking for the most distinguished appointment, the nominee most likely to create a new type of liberal judicial paradigm, or, for that matter, a judicial minimalist cognizant of the lessons of the past fifty years as elaborated upon by such brilliant liberal theorists as Jack Balkin, Barry Friedman, and Pamela Karlan. Rather, it's pretty obvious he went for what seemed to be the best political choice: a respected Hispanic woman with a compelling life story.


Did you sit in on the strategy sessions in which President Obama made his decision, or were you briefed after the fact?

I could write something like "when Professor Bernstein decided on the contents of his post on Jeffrey Rosen's piece, he wasn't looking for an opportunity to provide unique insight, to add something constructive to the national dialogue, or, for that matter, a thoughtful argument in opposition to Judge Sotomayor's nomination. Rather, it's pretty obvious he went for what seemed to be his typical style in political postings: a baseless rant against President Obama." But what kind of a hack would I have to be to do something like that?
5.31.2009 8:15pm
Dave N (mail):
pluribus,

According to Wikipedia (and in accounts similar to other Lincoln biographies I have read):
Perhaps Chase's chief defect as a statesman was an insatiable desire for supreme office. Never truly accepting his defeat at the 1860 Republican National Convention, throughout his term at the Treasury department Chase repeatedly attempted to curry favor over Lincoln for another run at the Presidency in 1864. Chase had attempted to gain leverage over Lincoln three previous times by threatening resignation (which Lincoln declined largely on account of his need for Chase's work at Treasury), but with the 1864 nomination secured and the financial footing of the United States Government in solid shape, in June 1864, to Chase's great surprise, Lincoln accepted his fourth resignation offer. Partially to placate the Radical wing of the party following the resignation, however, Lincoln mentioned Chase as an able Supreme Court nominee. Several months later, upon Roger B. Taney's death in 1864, Lincoln nominated him as the Chief Justice of the United States, a position that Chase held from 1864 until his own death in 1873.
By the way, Chase was confirmed in October, 1864, which was before the 1864 Presidential election--though he took his seat in December.

As an aside, characterizing my opinion of President Lincoln's motivation as "false" and an "untruth" is hardly civil--unless you somehow have the ability to read Lincoln's mind. I offered my observation as "opinion" based on my analysis of the evidence. You are, of course, free to disagree--but that doesn't make you a liar, either.
5.31.2009 8:18pm
Dave N (mail):
excuse me, Chase was "nominated" in October, 1864 but was likely not confirmed until after the election, since he did not assume his position as Chief Justice until December.
5.31.2009 8:20pm
first history:
rosetta's stones:

Sotomayor's was an affirmative action nomination, chromosomes and skin pigmentation being first order discriminators in contemporary liberal politics. Nothing new here.

Of the two minority and two women who have been or currently are on the Supreme Court, which ones are not affirmative action hires?
5.31.2009 8:37pm
AndyinNc:

Sotomayor's was an affirmative action nomination, chromosomes and skin pigmentation being first order discriminators in contemporary liberal politics. Nothing new here.


Imagine if a qualified white male had gotten into Princeton over Sotamayor! He might have got the better than the best student award!

Conservatives: Doing their best to unnecessarily piss off minorities!
5.31.2009 8:54pm
http://volokh.com/?exclude=davidb :
Loki13:

1. I think you can arguably make the case that 3/4 last Justices (Ginsburg, Breyer, and Roberts) were clearly on the hypothetical "short short list" (as opposed to the short bus) of SCOTUS nominations.

If you ever have a kid in special education, who rides the -- you know-- "short bus," I suspect you will conclude that this remark was in incredibly poor taste.

Just a prediction.
5.31.2009 9:38pm
rosetta's stones:

Of the two minority and two women who have been or currently are on the Supreme Court, which ones are not affirmative action hires?


Well, similar to Sotomayor, I'd say Sandy baby was an affirmative action hire, and I believe Reagan plainly said so, similar to Obama.

I don't believe Bush I or Clinton ever firmly promised in that regard, or claimed to be selecting based upon skin pigmentation or chromosomes, so Ginsburg and Thomas can't be tagged with the affirmative action label.

I think we'd have known if Ginsburg was an AA hire, as Clinton clearly let us know his AG was an AA hire (leading us to the embarassing Reno). And it's only fitting that O'Connor gave us the "25 years" line, the most braindead statement I've seen in any of the (admittedly few) SC opinions I've ever read, as she was an AA hire. So the pure AA hires seem to have come with at least a bit of bad karma.

I can't see much negative about Sotomayor, frankly, other than a few dumb statements. Still, she gets the AA tag, through no fault of her own perhaps, but it'll be there, and it'll tend to stick if she gets goofy like Reno or O'Connor. If she performs, it's forgotten.
5.31.2009 10:10pm
Moneyrunner43 (www):
Loki 13,

No I don't misunderstand Oren. I don't think that Oren's point was necessarily valid. If we are to state that a candidate for the Supreme Court is well qualified, we should then ask "compared to what?" To the average appellate judge? To others who have been nominated? To others that have been appointed?

To state that the average case brought to the Supremes is overturned is interesting, but meaningless unless we find out what the dispersion of results is. If one of the qualifications of a very good judge is not to be overturned by an appellate court, a 60% rate is not good even if there are worse judges who get almost all of their judgments overturned.

So I would like to know how she compares to judges that are currently on the court. I am not setting a trap because I don't know the answer. Perhaps we'll find that other supreme court justices were overturned more than she was. But to this non-lawyer it seems that the members of the bar are trying to make this an "inside baseball" game where the only people who are judged to be allowed to have an opinion are other lawyers.

The answer to inquiries is not "shut up."

Cboldt,

Are you saying that the Supreme Court in reversing her is playing games? That is an interesting position. Not that I disagree, you understand.
5.31.2009 10:16pm
Moneyrunner43 (www):
Sarcastro,

Here, have fun with this:

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.


From the la Raza speech.

The Bell Curve has obtained a strange new respect.
5.31.2009 10:24pm
Oren:

This isn't a "gotcha" question but an honest inquiry:

Not strictly needed, but nice to hear.


If the "political reasons" involved people potentially voting against a racial/ethnic minority or a woman on grounds of race, ethnicity, or gender, rather than hesitating to vote against the same person on the same grounds, would you be equally unbothered?

Yes. Politics is politics -- I don't mean that as a tautology, I mean that as a basic fact of life in a civilization there is going to be power and that person or persons will wield it in a fashion that serves their own interests.

I'm a big believer in the non-perfectibility of mankind. To me, that is the animating principle behind freedom -- if we were perfect, we would need no freedom. The consequences of this are fairly obvious -- when a mathematician writes a proof, we check it, when an engineer designs a building, we build a test model and when our political branches do wrong, we vote them out of office.


That is, to be unambiguous: Would you have no problem with a President or the Senate actually preferring white male candidates for appellate judgeships, or is it merely OK to dis-prefer minorities and women who are especially talented but ideologically incorrect, because the weak brethren might eventually vote on race/gender grounds to put these people on the Supreme Court? The hair to be split here seems to me awfully fine, but I haven't had a lifetime-s training in the process.

No hair splitting. The Senators are answerable only to The People of their respective States, not to any higher morality that impels them to treat nominees fairly.

That's not to say they are bound to vote according to opinion polls, of course, they should vote their conscience.
5.31.2009 10:44pm
einhverfr (mail) (www):
Rossetta Stones:
I would actually tag Thomas and Miers both as affirmative action nominees because of the political realities of whose posts they were nominated to fill.

We can't say for certain that Sotomayor's race was a big factor in her selection, and Obama could be pushing that after the fact. It seems even more likely that race was a factor for Thomas (replacing Marshall, the first Black justice on the court) and gender was a factor for Miers (would have replaced O'Connor).
6.1.2009 12:38am
einhverfr (mail) (www):
Rossetta Stones:


I don't see anybody much attacking Sotomayor's qualifications, because she actually has some, and they've survived enough days worth of internet parsing and scrutiny for us to know she's gonna get the job, even if she's engaged in some racially charged rhetoric. Miers was shot down summarily, because she had little to show in terms of qualifications. Good.


There were Supreme Court justices with less experience. Heck, we have even had Supreme Court justices who had never been to law school when they were nominated. So no, historically a lack of experience is no bar to being confirmed.
6.1.2009 12:40am
loki13 (mail):
I hate to do the cut and paste (I find it intellectually dishonest usually), but it is the only efficient way to answer each of these points in turn while allowing the OP to be restated.


No I don't misunderstand Oren. I don't think that Oren's point was necessarily valid. If we are to state that a candidate for the Supreme Court is well qualified, we should then ask "compared to what?" To the average appellate judge? To others who have been nominated? To others that have been appointed?

You did misunderstand Oren. You raised a bogus statistic that is being used for partisan puproses. To given you two commonly cited examples:
a. 80% of accidents occur within two mile of your house, therefore you should move.
b. Ted Williams failed to get a hit almost 66% of the time, therefore he wasn't a good hiiter.

Both of these statistics are true, but the conclusions drawn are meaningless and misleading without proper context (hence, bogus statistics). To say that Sotomayor is reversed x% of the time is meaningless without understanding the overall rate of reversals (in the same way that Teddy Ballgame's batting average looks bad- until you understand the difficulties of MLB). Moreover, unless you realize that the sample set is so small (5 or 6 cases, depending on the sourcing) that the rate of reversal is meaningless. I would love to say that Sotomayor is a *better* judge because her rate is acutally lower, but I can't, because the sample size is so low. Cert, for most CoA judges, is like lightining- you never know when it will strike. It would also be difficult to compare her to some other nominees- Roberts, with his long CoA experience (/joke)? Souter, with his complete lack of FedCt experience?


To state that the average case brought to the Supremes is overturned is interesting, but meaningless unless we find out what the dispersion of results is. If one of the qualifications of a very good judge is not to be overturned by an appellate court, a 60% rate is not good even if there are worse judges who get almost all of their judgments overturned.

I have no idea what this paragraph means. If you are looking at total results, then you have almost four hundred opinions (150+ civil alone, and we're not counting panels she was on when she didn't author the opinion), and 2 (or three) reversals. That's pretty good, right? The 50% / 60% rate isn't from the number of total opinions- it's the number that SCOTUS looked at (5 or 6), and then reversed (3). But SCCOTUS usually only looks when there might be a problem (hence the discretionary docket; if you're doing it right, no review).


So I would like to know how she compares to judges that are currently on the court. I am not setting a trap because I don't know the answer. Perhaps we'll find that other supreme court justices were overturned more than she was. But to this non-lawyer it seems that the members of the bar are trying to make this an "inside baseball" game where the only people who are judged to be allowed to have an opinion are other lawyers.
The answer to inquiries is not "shut up."

No, the answer wasn't to shut up. Oren was trying to inform you. You presented a statistic. You were educated as to why that wasn't an effective metric.

In sum:
a. Sotomayor is overturned less often than average.
b. But this meaningless, given the small sample size.

To give you an analogy, imagine you live in Florida. On average, every house has been struck by lightning twice. Your house hass been struck by lightning once. Your house is not special- it's just the nature of lightning striking.

(As for Reinhardt Mansion, which has been struck by lightning 384 times since July? Eh....)
6.1.2009 1:02am
rosetta's stones:
einhverfr,

Sure, we've had judges with no law school, and Lincoln had little or none as I understand. This ain't 1840 though, or even 1940, when we had 50% +/- the population of today. And back in 1840, it can't have been much over 10% of today's, and the illiterate SC hacks back then gave us Dred Scott to boot, so let's not cherish those misty, water-colored memories too much. The times have changed, and the scale and magnitude of the task have changed.

Our government, at all levels, does much, much more. It is involved in our life and transactions and business to a degree that would stun judges of earlier eras. Technology has advanced. Trade and transactions. Contracts. Divorce. Environmental law and regulation. We can go on and on, as to the reasons why we shouldn't send up judges with training wheels, even if we have in the past. Believe me, I'd be the first guy telling you we don't need trained and experienced lawyers in those jobs, if it were true, but I don't think it is.

Hey, I'd like to think you could put me on the SC and I'd do a credible job, ok I wouldn't get us nuked anyways. Just find me a 1/2 dozen crackerjack clerks to research comprehensively, and keep my cigar box full, and I'd be all set. But then, I have no basis or understanding to interview, qualify and hire those clerks, so how is it possible to legitimately promote a neophyte? And how could an inexperienced Miers interview and hire her remedial clerks, and would you want her to be doing so, today? There isn't even the smallest chance that I'd put an engineer to a task incompatible with his recently exercised skillset, not if it's critical. Why would we do that with judges?

I take your point, that an appeals court scenario might permit hiring somebody with no prior judicial experience, as opposed to the workaday stuff at the lower level, where the novice would be eaten alive, with no place to hide.

But if that judge isn't capable of functioning at any level in our system, on all sides of the equation(and broad and deep is always the way, for me), then why are we employing a judicial designated hitter at the SC bench level? I think we short ourselves, and it perhaps carries a risk of greater magnitude than in those earlier eras.
6.1.2009 1:40am
jukeboxgrad (mail):
bernstein:

feel free to point me to all the commentators who BEFORE her nomination were arguing that Sotomayor was the most distinguished choice available


I'm not claiming this is really an answer to your question, but your question reminds me of an entertaining passage from the article that first history and samw cited:

On Sept. 30 [1997], the day of her confirmation hearing, Rush Limbaugh … warned the Senate that Judge Sotomayor was an ultraliberal who was on a ''rocket ship'' to the Supreme Court. That day, Judge Sotomayor was questioned closely by Republicans.


It's just funny to notice that she got an endorsement (sort of) from Rush, of all people. It's also interesting to notice that he was actually kind of prescient.

====================
loki:

The only way this could play out electorally is if the GOP makes the (IMO) poor decision to turn a foreordained conclusion (her confirmation) into an opportunity to portray themselves as the anti-woman, anti-hispanic party.


But Rush is putting a lot of pressure on the GOP to do just that. And it's looking like they are bending to that pressure. Was Obama smart enough to know it would go that way? Who knows, but I think he's enjoying it.

====================
ltr:

Obama didn't try to please Hispanic voters with Sotomayor pick - 80% of Hispanic voters (or any other voters) couldn't name three SCOTUS Justices if their life depended on it and by the next election they'll forget Sotomayor too.


Maybe not. In Spanish-language US media, she is a very big deal right now. And she might stay a big deal:

Democrats gleefully agreed [that GOP attacks on SS will push Hispanic voters to vote D], noting in part that the issue would be exacerbated by a Hispanic media that tends to cover political news in larger chunks than its American counterpart.

"This is the worst of all worlds because these are the kind of comments and quotes that rip through popular culture," said prominent Democratic pollster Celinda Lake. "And people don't realize that media outlets like Telemundo still have a lot more news content then some of the networks like CNN. And so they have longer forums where these things are commented on by pundits and observers. It will be repeated even more because Sotomayor is obviously a huge news item in Latino press. So I think these kinds of comments that people think are isolated and embarrassing actually could have a real impact culturally. And I always think pop culture has a greater impact than policy or politics."


====================
money:

If one of the qualifications of a very good judge is not to be overturned by an appellate court, a 60% rate is not good even if there are worse judges who get almost all of their judgments overturned. So I would like to know how she compares to judges that are currently on the court.


The number for Alito is 100%. (More on Alito's reversals here.) I think the number for Thomas is 92%. Others have explained why this number is pretty meaningless, but I thought your pointless question deserved an ironic answer.

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.


You're making a fuss about "inherent physiological" and seemingly not realizing that it's connected to the word "gender." Either that, or maybe you don't realize there are indeed "inherent physiological" differences that are a matter of gender.
6.1.2009 2:59am
Moneyrunner43 (www):
Loki 13,

I understand your argument but I disagree with your conclusions.

Look, I would like to have a discussion about judicial qualifications that does not involve subjective opinions, and so far, I don't find any. So far, in fact, the only fairly sure thing we know about Sotomayor is that she has claimed that wise Latina women make better judges than white men. She also thinks that race and gender shape human mental processes. That's why I referenced the Bell Curve, which -- if you are old enough to remember -- was widely denounced as racist and bigoted.

So I want to have some metrics -- not your opinion, or Bernstein's or Volokh's -- as to what makes her an outstanding judge. So I picked on a statistic that is verifiable and in the public domain. And all I get is: it doesn't matter … it's as statistically meaningless as a lightning strike …. look over there.

No. Engineers that build bridges that collapse are not good engineers. Judges that get overturned on appeal have made an error; that means that in the opinion of a superior court, their bridge broke.

I can understand why people do not wish to be held to rigid standards. It's human nature. In any field where judgment is employed it's tempting to say that each case has to be judged on its merits. In the investment business, as in law, people are often wrong. But in the investment business we are judged on results. So I ask again: how good are her results? Compared to what?
6.1.2009 8:21am
loki13 (mail):
Moneyrunner43,

I am violating my own rule my repeating again what is obvious. But in your desire to have a useful metric, you are completely misunderstanding what is going on. As Oren (and I) have explained now, *three* times- reversals by SCOTUS are not a useful metric for quality when it comes to measuring CoA judges. I've explained the basic statistical reasons; there are other "fancy legal" reasons, but I didn't want to turn you off with our "inside basball/lawyer/magick stuff". To give you but one example- if a CoA Judge does everything right and *follows the law* (aka precedent, like they're supposed to), but SCOTUS changes the law- they will get reversed. Does the mean that the CoA judge did a bad job?

So when you write:

Judges that get overturned on appeal have made an error


That is, well, an incorrect statement.

And when you write:

So I want to have some metrics -- not your opinion, or Bernstein's or Volokh's -- as to what makes her an outstanding judge. So I picked on a statistic that is verifiable and in the public domain.


Well, sure. And when I make investment decisions based on the ratio of tatoo ink of your employees to (the number of pages of Ulysses they got through)/(the number of pages of Ulysses they claim to have read) then I am using a metric... just not a germane one.

And, as JBG has pointed out- it's pretty much a lightning strike. I wasn't aware that Alito or Thomas had such "bad" reversal rates... but they don't really matter until you look at the individual cases.
6.1.2009 8:41am
pluribus:
Dave N:

Abraham Lincoln got rid of a political rival, Salmon Chase, by making him Chief Justice;

Chase was confirmed in October, 1864, which was before the 1864 Presidential election--though he took his seat in December.
As an aside, characterizing my opinion of President Lincoln's motivation as "false" and an "untruth" is hardly civil--unless you somehow have the ability to read Lincoln's mind. I offered my observation as "opinion" based on my analysis of the evidence. You are, of course, free to disagree--but that doesn't make you a liar, either.


Sorry, Dave, but you are wrong.

First, Chase's nomination was not not confirmed in October 1864. The Senate wasn't even in session in October, 1864. And Lincoln didn't submit the nomination to the Senate until December 6. It was unanimously confirmed that same day. See Brian McGinty, Lincoln and the Court (Harvard 2008), 232; Michael Burlingame, Abraham Lincoln: A Life (Johns Hopkins 2008), 2:735; The Civil War Day by Day (DaCapo 1971), 606.

Second, Lincoln was reelected to a second term on November 8, 1864. Chase was no rival to Lincoln after that date. In fact, he was no rival to Lincoln after Lincoln was renominated by the Republicans in June 1864. But Chase continued to aspire to the presidency even after he became chief justice. Lincoln thought this was ridiculous, because he did not believe that Chase would ever be elected president; but he still believed that Chase was the best man for the position of chief justice. This is not a matter of opinion on which people may disagree. It's a matter of fact which can be looked up in standard authorities.

Third, it is not uncivil to characterize a false statement as false. When you stated that Chase "got rid of a political rival" when he appointed Chase, you made a false statement.

Fourth, it is not necessary to read Lincoln's mind, when he left many statements, written and oral, explaining why he nominated Chase and what he thought about him. Historical research starts with the available evidence, not with mind reading.

Fifth, to correct a false statement is not to accuse anybody of lying. I corrected a false statement you made and did not accuse you of lying. To paraphrase Leslie Baron Lever (in a quotation sometimes attributed to Churchill), I will never make an allegation of dishonesty when a simple explanation of stupidity will suffice.
6.1.2009 9:14am
jukeboxgrad (mail):
money:

I want to have some metrics


You seem to be highly interested in "metrics" except when they show Republicans in a bad light. Because you have done nothing to acknowledge the fact that Alito's "metrics" (at least with regard to the issue with which you are unaccountably obsessed) are inferior to SS's.
6.1.2009 9:24am
Joseph Slater (mail):
So far, in fact, the only fairly sure thing we know about Sotomayor is that she has claimed that wise Latina women make better judges than white men.

No. Even assuming that quote should stand by itself (as opposed to being put in a broader context, that's in no way "the only fairly sure thing we know" about her. Aside from her objectively excellent academic and professional record, we have an extensive list of cases that she heard and wrote opinions about. Perhaps it would relieve your anxiety about the quote to note that her record on discrimination cases has been parsed carefully, and there is no evidence of bias, on behalf of plaintiffs or otherwise.

Beyond that, I find it hard to believe that you are being sincere in not understanding the statistics here. Again, (1) she does better than average appellate judges as to reversal rates; (2) she does better than some other current S.Ct. justices did in reversal rates, but (3) this is pretty much meaningless because the numbers are so small.

As to (3), you may not be a statistician, but I assume that you would not conclude that a major league batter who has had two at-bats and one hit is the best for-average hitters of all time because his current batting average is .500.
6.1.2009 9:35am
jukeboxgrad (mail):
slater:

I find it hard to believe that you [moneyrunner] are being sincere


Someone who shamelessly presents a doctored quote and then refuses to take responsibility for doing so probably has some issues with sincerity.
6.1.2009 11:25am
Steve H (mail):

No. Engineers that build bridges that collapse are not good engineers. Judges that get overturned on appeal have made an error; that means that in the opinion of a superior court, their bridge broke.


Not exactly. When a circuit court gets overturned by the Supreme Court, that simply means that a majority of the Supreme Court disagreed with the judge.

Maybe it was an "error" by the circuit court, maybe it was an error by the Supreme Court.

Or maybe it wasn't an error by anybody, but rather a disagreement as to how inherently vague legal standards should be applied to concrete but complex factual scenarios.
6.1.2009 12:50pm
Harold Kovins:
@ Orin -- The point isn't that being a Supreme Court clerk, being on the DC Circuit, holding a higher rank in the SG's office, having a more impressive law journal office, or whatever, will *necessarily* make you a better justice. Any more than going to a finer law school, having better grades, and clerking for a feeder judge will *necessarily* make you a better SCOTUS clerk. But, given that it is very hard to measure in any objective way "judiciousness" or "clerkliness," we rely on proxies to make the call.

For better or worse, Roberts had checked every box there was for being a legal all-star. He could've done a few things better -- president of HLR, summa cum laude, SG rather than principal deputy -- but only those few things, and only in those slight degrees. In all other ways, he had positioned himself to be a simply astounding pick to be a Supreme Court justice in every way that one can objectively measure things.

You're absolutely right that if Alito had sat in Cambridge, he probably could've been an adjunct at Harvard, whereas if Roberts had sat in Sacramento, he would've been an adjunct at McGeorge. But so what? Accidents of history matter, and sometimes they're not entirely accidental. That the Third Circuit includes Seton Hall and not Harvard is part of why the Third Circuit isn't the First Circuit. One kid is born in New York and grows up to be governor of his state; another is born in Alaska and grows up to be governor of his state. Both have achieved the highest state elected office and both have led similar life stories, but would anyone think it irrelevant to their presidential pedigree that one had only been governor of Alaska and the other of New York? *Even setting aside* the relatively complexities of the jobs?

Other than Alito, without going to Google can you think of any justices who started out on the Third Circuit? Off the top of my head, I can think of plenty who came off the D.C. Circuit, the Ninth Circuit, the Second Circuit. Heck, other than Alito, can you *name* a judge on the Third Circuit, or a famous opinion of the Third Circuit?

There are plenty of other metrics we can deploy. Did Alito ever send a clerk to the Supreme Court before he started incestuously hiring his own former clerks? Has any other judge of the Third Circuit ever sent a clerk to the Supreme Court?

My point was not that Alito is ultimately worse justice than Roberts. (In some ways I like him more.) Rather, my point is that from the standpoint of nominating the clearly most qualified candidate, Alito in no way was in the same league as Roberts. He was a solid cause conservative who was a good judge with a strong record and an interesting life story. But Roberts was a luminary of the most luminous legal circles.

Sotomayor has always been a SCOTUS front-runner because of her race and sex. Setting those aside, she's somewhat less impressive than Alito in the objective characteristics. Her pick, like the Alito pick, involved passing over more obviously qualified candidates (Kagan and Wood vs. Luttig and Wilkinson, largely for political / cause reasons. Ultimately, she may prove to be a wonderful justice. So may Alito. But neither can be characterized as picking a candidate solely on legal luster, while Roberts can.
6.1.2009 1:16pm
David M. Nieporent (www):
Someone who shamelessly presents a doctored quote and then refuses to take responsibility for doing so probably has some issues with sincerity.
One would think so. But apparently not.
6.1.2009 3:09pm
rosetta's stones:
Nieporent,

Yeah, box is pretty good for fantasizing. And speaking of engineering bridges, box fancies him/herself a structural engineer, as well, which is fairly comical, since he/she appears to have the technical knowledge of a single-celled lifeform.
6.1.2009 4:04pm
einhverfr (mail) (www):
Rossetta Stones:

I am going to give you two reasons however, why the Supreme Court should have a non-lawyer on the bench......

The first issue has to do with the readability of opinions. I am not a lawyer but I can read the Supreme Court opinions without much trouble. However, I find that most folks I forward opinions they would find interesting to simply are not legally literate enough to read the opinions for themselves. Heck, given how badly most opinions are misrepresented by think tanks and news services (and even by appeals courts as we saw with Presser), this needs adjusting.... A non-lawyer on the bench would help with this problem. Furthermore, when one is writing documentation (and legal opinions DO amount to documentation), it helps to have an ignoramus constantly asking you questions. Sure quantity of work would suffer but I think quality would improve. This doesn't really impact Miers nomination, though it might give good reason to have you nominated ;-).

The second issue has to do with the idea that a breadth of perspectives is helpful. At least, if nothing else, we should look for people who both have practised law and had other careers as well.

Please don't misunderstand me. I am not saying "no lawyers on the supreme court" or even that lawyers shouldn't dominate the supreme court, but that it would be helpful to have one non-lawyer on the court to broaden the diversity of viewpoint and help address readability issues.
6.1.2009 4:40pm
pluribus:
einhverfr:

I find that most folks I forward opinions they would find interesting to simply are not legally literate enough to read the opinions for themselves. .. A non-lawyer on the bench would help with this problem.

Are you suggesting that the non-lawyer on the bench would write all the opinions? Or just his or her share of the total that are handed down? If the latter, then eight out of nine of the opinions might still be unreadable by the folks you forward opinions to. Your suggestion would seem to assume that non-lawyers are always better writers than lawyers. Sometimes, perhaps, but not always. If a non-lawyer were appointed to the court who turned out to be a rotten writer as well as to know nothing at all about the law, do you really believe that the quality of Supreme Court decisions would improve? Or that the ability of the folks you forward opinions to to understand them would take a dramatic turn for the better? All of this is quite speculative at best. I still think it would probably be better to pick judges from among those who care enough about the law to go to school for three years to learn about it, to pass some exams to show that they understand it, and maybe even to practice a little law in the real world, before passing on momentous constitutional questions that rend the body politic. (Heck, come to think of it, that pretty well describes lawyers, doesn't it? Perhaps that explains why Supreme Court justices up to now have all been lawyers.)
6.1.2009 5:37pm
rosetta's stones:
ein,

I hear you, and yes diversity on the courts would be a wonderful thing, but in a slightly different tack than you're suggesting. My experience with lawyers in general is that they seem to come out of academic backgrounds unrelated to the technical: mathematics, engineering, chemistry, and IT is an unknown acronym to many of them I'm thinking. I'd look for some candidates with that background, and who've practiced around law related to that background.

Maybe I'm arrogant, but I think your garden variety engineer or mathemetician or physicist has the ability to walk out and pick up a law license if he/she has the motivation, but is the reverse true? Could the average lawyer go out and pick up a graduate degree in physics? I wonder, and I wonder if we're shortchanging ourselves without that type of diversity in the lawyer herd, which feeds up onto our benches.

I don't think you have to throw the baby out with the bathwater. You can find what you need within the lawyer profession, if you have the right seed stock, but I'm not sure we have it.

One other note, I do see the need for proper legal language in opinions, much as other professions must make use of rigorous and disciplined use of language and terminology. I'd always recommend taking out the hatchet on whatever you write, and thin it down (unlike these posts of mine), but not to the degree that abandons rigor. And yes, the layman will be confused by the terminology in legal opinions, but I'm sure it has its purpose, even if I'm lost on it oftentimes.
6.1.2009 5:40pm
jukeboxgrad (mail):
nieporent:

apparently not


I already responded to you. It would be nice if you had something new to say, instead of the same false accusation. Just for variety, occasionally you could repeat some of your prior false accusations (link, link).

==================
rosetta:

box fancies him/herself a structural engineer


You must be thinking of someone else. But I have found a structural engineer. Trouble is he doesn't like answering questions. If you have any idea why, let me know.
6.1.2009 8:17pm
Moneyrunner43 (www):
Joseph Slater,

Thanks for your reply.

If you can put into "a broader context" her assertion that a wise Latino woman would make a better judge than a white man, have at it. If you would like to tell us she was sucking up to her audience at La Raza (not an unlikely possibility), and really didn't mean it, I can even accept that. But please don't insult my intelligence by telling me that I should not believe my lying eyes. OK?

Other than her lovely story of rising from the proverbial gutter to the Federal bench, I have not heard very much about her "excellent academic and professional record" which I repeat, "compared to what." It does not seem to be a major part of Team Obama's story. Are there not other judges who have "excellent academic and professional records" who don't profess the superiority of racial or gender groups in their role as judges?

The reason I come back to that question is that the most common thing I hear when I ask clients how they are doing is the answer "OK." "OK" is not a good answer. "Great" is not an answer. Answers that are meaningful are always comparative. Compare to your personal goals or compared to an objective scale is meaningful. "Excellent" is meaningful if everyone else is not ranked "superlative" … or "mediocre."

And for those who believe that standards of excellence should be abandoned if it can be shown that previous Supreme Court justices were poor performers prior to being elevated to the top branch of the judiciary; good luck. Perhaps it's time to make sure that standards of excellence are observed no matter who is making the appointments to a lifetime position.
6.1.2009 9:27pm
Oren:

Perhaps it's time to make sure that standards of excellence are observed no matter who is making the appointments to a lifetime position.

The Supreme Court is not Olympic swimming -- it is a political institution. There's no such thing as objective excellence. Attempts at elucidating objective standards of excellence are, in my experience, usually just a fig leaf for reaching results that you wanted beforehand independently.

Of course, I admire a number of Justices whose view of the Constitution I find intolerable (Scalia) but I wouldn't nominate/elevate him if I were President and I'd find myself hard pressed to vote for his confirmation. In fact, right this second I'm not even sure Scalia meets me "too ideological for cloture" standard.
6.1.2009 9:35pm
David M. Nieporent (www):
I already responded to you.
Right. Falsely. That's where the "refusing to take responsibility for doing so" half of your shamelessness kicks in.
6.1.2009 10:16pm
jukeboxgrad (mail):
nieporent:

Falsely


You're claiming that something I said here is false. The odd thing is that thread stayed open for at least a week after I posted that message, and you never appeared to demonstrate that I had said something false. So where's the proof, and why didn't you put it there, where it belongs, when you had a chance?

And something similar took place here. You made false accusations, and then I demonstrated that the accusations were false, and then you disappeared. You said nothing, even though the thread remained open for several days.

So if you ever get around to finally dealing with all that proof which you've been ignoring, I hope you'll let me know.
6.2.2009 12:09am
David M. Nieporent (www):
You're claiming that something I said here is false. The odd thing is that thread stayed open for at least a week after I posted that message, and you never appeared to demonstrate that I had said something false. So where's the proof, and why didn't you put it there, where it belongs, when you had a chance?
You're claiming that I never demonstrated that something you said there was false. The odd thing is that I did. The odd thing is that you "refused to take responsibility for doing so." Twice. When you first fabricated the quote (back in this thread linked in my post), and then again in that second thread.
6.2.2009 6:52am
David M. Nieporent (www):
I should clarify that when I say, "when you first fabricated your quote," I mean the first time I noticed it. Given your extensive habit of repeating yourself as though your "insights" were so wise that they deserve repetition no matter how irrelevant they are to the topic at hand, it's likely you did it at some earlier point.
6.2.2009 6:53am
jukeboxgrad (mail):
nieporent:

You're claiming that I never demonstrated that something you said there was false. The odd thing is that I did.


You are being deliberately vague by saying "there," and you are glossing over the fact that I just specifically mentioned my posts here and here. In those posts I demonstrated that you made multiple false accusations. Now you are claiming that you "did" demonstrate that something I said "there" was false. But I am referring specifically to those posts, and you never demonstrated anything about what I said "there" (i.e., in those posts), because you never responded to those posts. And you have still not responded.

Where is your response to those posts? Where is your proof that what I said in those posts is false?
6.2.2009 7:18am
jukeboxgrad (mail):
And speaking of posts which you ignored, because they demonstrate the fallacy of your claims, you also never responded to this.
6.2.2009 7:22am
Moneyrunner43 (www):
Oren said:


The Supreme Court is not Olympic swimming.



Correct. It's more important than that. That's why elevating someone to it is not something that should be taken lightly. And at a time when racial polarization is increasing rather than decreasing it is important that people who have arguably taken racist positions should not get the job.

Thomas Sowell (no pasty whitey he) made the point well in his column when he said that


The clearly racist comments made by Judge Sonia Sotomayor on the Berkeley campus in 2001 have forced the spinmasters to resort to their last-ditch excuse, that it was "taken out of context. …

The very idea that a judge's "life experiences" should influence judicial decisions is as absurd as it is dangerous.

It is dangerous because citizens are supposed to obey the law, which means they must know what the law is in advance-- and nobody can know in advance what the "life experiences" of whatever judge they might appear before will happen to be….

The clever people in the media and elsewhere are saying that "inevitably" one's background influences how one feels about issues. Even if that were true, judges are not supposed to decide cases based on their personal feelings.
Justice Oliver Wendell Holmes said that he "loathed" many of the people in whose favor he voted on the Supreme Court. Obviously, he had feelings. But he also had the good sense and integrity to rule on the basis of the law, not his feelings.

Laws are made for the benefit of the citizens, not for the self-indulgences of judges. Making excuses for such self-indulgences and calling them "inevitable" is part of the cleverness that has eroded the rule of law and undermined respect for the law.

It was "empathy" and "life experiences" that got so many white men judged innocent after a lynching. But Sowell was too polite to say so.
6.2.2009 8:20am
David M. Nieporent (www):
But I am referring specifically to those posts, and you never demonstrated anything about what I said "there" (i.e., in those posts), because you never responded to those posts. And you have still not responded.
I already proved it was false, in the original thread, which I just linked to. I don't need to "respond" over and over again to your same false claims. Once is enough. You raised no new points; you just repeated the same nonsense. (Not that I would be obligated to "respond" to them if you did raise new points. Once again: you don't get to give people homework. You lied, you were caught. That was proven. The rest is just your attempt to create fog to cloud the issue.)
6.2.2009 8:57am
jukeboxgrad (mail):
nieporent:

You raised no new points


Here, here and here I raised new points and I also raised prior points that you had evaded. And which you are still evading. You never responded to those posts, and you never will.

===================
money:

The very idea that a judge's "life experiences" should influence judicial decisions is as absurd as it is dangerous.


Thomas Sowell, meet the "dangerous" Samuel Alito:

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 into account.


Thomas Sowell should also meet the "dangerous" Justice O'Connor and the "dangerous" Justice Marshall, who seemed to not know how "dangerous" and "absurd" they were:

At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.


Even Scalia had something to say on the matter.

Sowell also said this:

It would be considered a disgrace if an umpire in a baseball game let his "empathy" determine whether a pitch was called a ball or strike. Surely we should accept nothing less from a judge.


What a shame to discover that Bush I praised Clarence Thomas's "empathy." That should obviously "be considered a disgrace."

IOKIYAR.

Who's more of a joke, Sowell, moneyrunner or nieporent? Tough choice.
6.2.2009 9:07am
rosetta's stones:

You lied, you were caught. That was proven. The rest is just your attempt to create fog to cloud the issue.


box, I have to agree with Nieporent. You appear to be making this behavior a regularity, and it's ugly. This isn't mortal combat, friend.

I appreciate the tone you took in that automotive thread above, and I again compliment you for it, and responded accordingly there. We should work to that standard.
6.2.2009 12:58pm
jukeboxgrad (mail):
rosetta:

I have to agree with Nieporent


What a surprise. The two of you are birds of a feather.

I … responded accordingly there


If by "accordingly," you mean 'according to my usual hackish standards,' that's true, you did. Or if you meant 'according to nieporent's hackish standards,' that's true too. Because your latest hackery is just like your prior hackery, and his latest hackery is just like his prior hackery, and your hackery is a lot like his. So I hope you both keep up the good work. You set a fine example for each other.
6.2.2009 10:32pm

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