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Senator Cornyn's "Daily Question" for Judge Sotomayor:

Senator John Cornyn has announced that he will pose a "daily question" raised by Judge Sotomayor's record and opinions every business day from now until the start of the confirmation hearings on July 13. As the press release explains: "The goal of the Daily Question series is to encourage a civil discourse that focuses on what is important: Judge Sotomayor's record and judicial philosophy." Insofar as the question helps to keep the discussion over Judge Sotomayor focused on substantive legal questions, this seems like a good idea to me (and much better than the name-calling and psychoanalyzing that we've seen in recent weeks).

Today's question is "What is the proper role of foreign and international law in interpreting the United States Constitution?" In his release, Senator Cornyn explains how this question has been raised in some of Judge Sotomayor's speeches and decisions, in particular a 2009 speech before the ACLU of Puerto Rico. Senator Cornyn concludes:

In my view, the Constitution does not give federal judges the "freedom of ideas" to devise new ways to limit the democratic process. Judges must follow the law and the Constitution. They are not "free" to enact "good ideas" into law when their "creative juices" flow. That is a job for the people acting through their elected branches, not a job for judges tasked with following the law. In light of Judge Sotomayor's address at the ACLU of Puerto Rico, I hope Judge Sotomayor can explain how she reconciles her views of foreign and international law with the properly limited role of the judiciary in a democratic society.

Edmund Unneland (mail):
"Yay, Orin," is perhaps the proper reaction :-) ...
6.12.2009 2:47pm
martinned (mail) (www):
I wonder if Orin will be willing to blog about his involvement in Judge Sotomayor's confirmation process after the whole thing is done. It would be interesting to hear about the practice of the thing, or even simply to hear whether he agreed to do this in order to shoot down Sotomayor or for some loftier purpose. (Or even simply because such a request is too flattering to say no to.)
6.12.2009 2:50pm
Potted Plant (mail):
Certainly judges are "tasked with following the law," but isn't the real issue how a judge "interprets" the law -- when reasonable minds can differ as to what the law means?
6.12.2009 2:52pm
Just an Observer:
In what venue is Sotomayor (or anyone else) supposed to answer these questions?
6.12.2009 2:55pm
martinned (mail) (www):

Certainly judges are "tasked with following the law," but isn't the real issue how a judge "interprets" the law -- when reasonable minds can differ as to what the law means?

...which is what today's question is about...
6.12.2009 2:56pm
alkali (mail):
Perhaps Sen. Cornyn will push Sen. Leahy to move up the hearing date so that he can ask all of these important questions right away.
6.12.2009 2:59pm
cboldt (mail):
I'd like to have the nominees asked to brief the Miller and Presser cases. That should be non-controversial as to emerging legal doctrine, since they are old "settled" cases.
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The public could play along too, by reading the cases, and taking in the explanations as expressed by experienced judges.
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If a nominee can't get right that Miller's indictment was quashed before trial (because the trial court found the 1934 NFA to be afoul of the 2nd amendment), and that the District Court would have reinstated that procedural status on a finding that a short barrel shotgun is any part of the ordinary military equipment or that its use could contribute to the common defense, then the nominee is clearly unable to read and construe simple precedent, and should be disqualified.
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As to Presser, I'd grade the answer on whether or not they noticed the case was about constitutional protection for conducting parades.
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I don't expect anybody in the Senate to put a nominee to the test I suggest; because the Senate is just as gun-rights hostile as the Courts are; maybe moreso. The Senate approves of faulty jurisprudence, when they support the ends obtained.
6.12.2009 2:59pm
ruuffles (mail) (www):

I'd like to have the nominees asked to brief the Miller and Presser cases. That should be non-controversial as to emerging legal doctrine, since they are old "settled" cases.

Breaking news: Posner and Easterbrook explicitly agree with Sotomayor.
6.12.2009 3:03pm
PersonFromPorlock:

...but isn't the real issue how a judge "interprets" the law -- when reasonable minds can differ as to what the law means?

If reasonable minds can disagree as to what a law means, shouldn't that law be found unconstitutionally vague?
6.12.2009 3:28pm
RA (mail):
I think the Judge should ask John Cornyn why the heck he is spending so many tax dollars flying around on the taxpayors dime.
6.12.2009 3:31pm
MarkField (mail):
A snarky but accurate response would be that they are certainly appropriate in the interpretation of Art. I, Sec. 8, cl. 10.
6.12.2009 3:33pm
MarkField (mail):

If reasonable minds can disagree as to what a law means, shouldn't that law be found unconstitutionally vague?


Not under current law, no. Void for vagueness only applies in limited circumstances (mostly free speech). Lots of reasonable people can and do disagree about the meaning of lots of laws.
6.12.2009 3:35pm
Assistant Village Idiot (mail) (www):
Sotomayor's supporters might hear nuanced honesty in her statements. Her opposition might hear rationalization of her true beliefs leaking out.

Her choice of words suggests that she knows judges aren't really supposed to do this, but it's okay sometimes as long as they mean well and are really smart.
6.12.2009 3:38pm
Recovering Law Grad:
In my view, the Constitution does not give federal judges the "freedom of ideas" to devise new ways to limit the democratic process. Judges must follow the law and the Constitution. They are not "free" to enact "good ideas" into law when their "creative juices" flow.

Snarky? Check.

Intellectually dishonest? Check.

Harmful to future Republican electoral chances? Check.

Just another day in the Republican caucus.
6.12.2009 3:44pm
Edmund Unneland (mail):
The reason I say "Yay, Orin," is that it elevates the conversation from where it was.
6.12.2009 3:55pm
24AheadDotCom (mail) (www):
Just an Observer asks In what venue is Sotomayor (or anyone else) supposed to answer these questions?

Make your own venue. She's appearing in public, so grab a video camera and go out and ask her the question above or something even better.

As for "Judge Sotomayor's record and judicial philosophy", I'd say that her strong support for AffAction is definitely part of her record, as is the fact that for six years she was a member of this group. It's also important to note that I've been reliably informed that she is not a robot. She might keep doing on the SC what she's done before, or she might not. Thus, all the things she's said outside court - here in the real world - matter. That's also the way to defeat her: by turning public opinion against her. If her support were halved - something that would be fairly easy to do - that would at least strengthen weak GOP backbones. Since AffAction only has about 20% support, and since support for groups that give awards to those who propose genocide are probably even lower, turning public opinion around shouldn't be that difficult if people did things in the right way.
6.12.2009 3:59pm
lesser ajax (mail):
Remember the time the Supreme Court said, "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." That was awesome.
6.12.2009 4:04pm
Dilan Esper (mail) (www):
As for "Judge Sotomayor's record and judicial philosophy", I'd say that her strong support for AffAction is definitely part of her record, as is the fact that for six years she was a member of this group.

In other words, she takes a reasonable mainstream position on the issue of affirmative action and belongs to a mainstream Latino civil rights group.

I think that the trend of conservatives trying to define every mainstream liberal position as "extremist" is a neat trick. Earth to conservatives-- you guys are losing elections right and left. You might want to worry more about whether your own positions are actually on the political extreme.
6.12.2009 4:17pm
Cato The Elder (mail):
Dilan Esper,

Stop your tiresome advice, and let us find out whether or not affirmative action is a popular political position and let us shamefacedly experience how wackily self-destructive Republicans can be. Again, why are you given those who constantly thwart the building of the New Jerusalem counsel?
6.12.2009 4:34pm
Terrivus:
Earth to conservatives-- you guys are losing elections right and left.

Except here, of course.
6.12.2009 4:38pm
Dilan Esper (mail) (www):
Stop your tiresome advice, and let us find out whether or not affirmative action is a popular political position

I didn't say that it had majority support. I don't think it does. But it isn't "extreme"-- it is perfectly within the mainstream.

That's my point. You guys have a losing political platform filled with unpopular issues, and you are calling out Democrats as extreme for espousing an issue that, while not having majority support, isn't exactly costing us elections and never has. (And I should disclose, I am not exactly a big supporter of race- and gender-based affirmative action programs. I just don't think that a position that is taken by 35 or 40 percent of the public is "extreme".)

Go ahead, keep doing this. I really don't care if you guys ever win another election.
6.12.2009 4:40pm
CJColucci:
I can't imagine why Cornyn wants to tip Sotomayor off in advance about the questions she'll have to answer. Actually, I can imagine, but "because Cornyn is a moron" is too dull an explanation to suit me.
6.12.2009 5:02pm
Dilan Esper (mail) (www):
I can't imagine why Cornyn wants to tip Sotomayor off in advance about the questions she'll have to answer. Actually, I can imagine, but "because Cornyn is a moron" is too dull an explanation to suit me.

Allow me to defend Cornyn on this one (even though I don't agree with his goal). Unless you find some smoking gun (say that Sotomayor was building bombs in Bill Ayers' apartment in the 1970's or something), you can't stop a nomination with something that comes up at the hearing. (Indeed, even with something apparently scandalous, like the Clarence Thomas sexual harassment allegations, it is difficult to do.)

So the only way Cornyn can build opposition to the nomination is to get out in front and get arguments into circulation that might cut into her support over time before the hearing. (This is the real reason why the GOP preferred a later hearing for her.) This is a perfectly legitimate political tactic and people who support her nomination have to be prepared to mount a defense.
6.12.2009 5:07pm
Just an Observer:
The more I think about it, posing the rhetorical "Daily Question" is a pretty clever political device. A confirmation is a political event, which makes the tactic in-bounds.

It could even lead to substantive discussion among bystanders, even though no one seriously expects the nominee to engage the issue yet.

But notice how the question has not raised the substantive level of comments here. They quickly reverted to partisan squabbling, including remarks about make-believe issues of "genocide" and "the New Jerusalem."
6.12.2009 5:14pm
gab:
And while Ilya's at it, maybe he oughta ask Scalia the same question.


Justice Antonin Scalia, writing in dissent to Monday's ruling that state court judges may be obliged to recuse themselves from a case if they've received large campaign contributions from one of the litigants.

Scalia wrote that a "Talmudic maxim instructs with respect to the Scripture: 'Turn it over, and turn it over, for all is therein.' The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935)."


Or is the Talmud not foreign or international?
6.12.2009 5:19pm
DangerMouse:
But it isn't "extreme"-- it is perfectly within the mainstream.

Yeah, it's perfectly mainstream to belong to an organization that calls itself "THE RACE." Nothing questionable about it at all.
6.12.2009 5:26pm
BTD (mail):
Hmm. Did Senator Cornyn not watch the video? I think the question is already answered.
6.12.2009 5:28pm
24AheadDotCom (mail) (www):
I get all these hacks confused, but is Dilan Esper the L.A. atty who handles things other than immigration, or is he an imm. lawyer?

In any case, from this:


American voters say 55 - 36 percent that affirmative action should be abolished, and disagree 71 - 19 percent with Supreme Court nominee Sonia Sotomayor's ruling in the New Haven firefighters' case, according to a Quinnipiac University poll released today... More than 70 percent of voters say diversity is not a good enough reason to give minorities preferential treatment in competition for government or private sector jobs...


The NCLR is only a "mainstream Latino civil rights group" in the sense that many groups are more extreme than they are. For instance, they aren't aztlan.net or MEChA, even though they have given grants to the latter among other interesting groups.

P.S. Some people might remember this guy, the one who ran a school and who didn't want to drink from the "white water fountain". That school is/was funded by the NCLR.
6.12.2009 5:30pm
DangerMouse:
24Ahead,

Don't refer to it by some innocent-sounding acronym. It's name is THE RACE.
6.12.2009 5:32pm
Dilan Esper (mail) (www):
Yeah, it's perfectly mainstream to belong to an organization that calls itself "THE RACE." Nothing questionable about it at all.

It's not worth explaining what "la raza" really means to non-Spanish speakers. In any event, it doesn't mean "the race" in the usage the organization makes of it.

Further, NCLR is in fact the major Latino civil rights group. Many mainstream liberal and conservative Hispanics belong to it. It's the NAACP for Hispanics.

Again, bottom line, this is an exercise in conservatives defining the mainstream as "extremism". And it only harms conservatives.
6.12.2009 5:36pm
Dilan Esper (mail) (www):
Note by the way, that I said 35 to 40 percent of the public supports affirmative action, and 24ahead attacked me by citing a poll that says that... wait for it... 36 percent of the public supports affirmative action.
6.12.2009 5:37pm
Ryan:
Markfield,

I think you're only half right. Your proposed answer is snarky but not accurate. Art. I Sec. 8 Cl. 10 applies to the powers of Congress, not the judiciary.

If Congress chooses to define an offense under the Law of Nations, the judiciary undoubtedly has the authority to interpret that law. The controversial issue is when the Court uses international law the United States has not subscribed to.

Of course, that clause certainly wouldn't give the Court authority to consider foreign law (as opposed to international law).
6.12.2009 5:42pm
levisbaby:

"The goal of the Daily Question series is to encourage a civil discourse that focuses on what is important: Judge Sotomayor's record and judicial philosophy."

The more someone talks about civility, the better the chances are that he is an asshole.
6.12.2009 5:44pm
Dilan Esper (mail) (www):
Ryan:

Actually, you are not quite grappling with what Mark is getting at. The Torture statute is the logical example.

The Torture statute was enacted to comply with US obligations under the Convention Against Torture. It basically imported a definition of torture from international law, although you can argue it narrowed it somewhat. Now, everyone agrees that federal courts can interpret that statute, right?

Now, if a federal court finds a decision of, say, a French appellate court interpreting a similar torture statute that was also enacted to comply with obligations under the torture convention, can it cite it as persuasive authority, assuming the US torture statute is not completely clear on the point at issue? Doesn't the fact that Congress was defining and punishing an offense under the Law of Nations suggest that it can? And yet my understanding is that many conservatives would get quite upset about this.
6.12.2009 5:55pm
Steve H (mail):

That is a job for the people acting through their elected branches, not a job for judges tasked with following the law.


I certainly hope Orin didn't write that. Because I'd hope Orin would be smart enough to know that for the last, oh, eight hundred years or so, judges have been making law as well as following the laws enacted by the people's representatives.
6.12.2009 5:58pm
Steve:
That's an interesting question, Dilan. If Michigan and Ohio have adopted similar versions of the same UCC section, but Michigan has a case interpreting that section and Ohio does not, it certainly wouldn't be an outrage for an Ohio court to consider the Michigan decision as persuasive.

To play devil's advocate, though, I'd think that when a state legislature enacts a version of a uniform statute, they're consciously choosing to adopt the body of interpretive decisions that have grown up around that uniform statute in other states. In fact, that would probably be seen as an advantage, the fact that your courts don't have to write upon a blank slate in interpreting the uniform statute. But is it likely that Congress thought in those same terms when they adopted the torture statute? Is there any evidence that it intended to adopt the body of international law on the subject, or that it saw the existence of an established body of foreign law as an advantage?
6.12.2009 6:02pm
DangerMouse:
My daily questions for Sotomayor:


What made you join "The Race"?

How many other exclusively racial groups do you belong to?

What racial policies about "The Race" do you favor the most?

What made you join the Belizean Grove?

How many other exclusively female-only groups do you belong to?

What sexist policies about the Belizean Grove do you favor the most?

Did you ever consider quitting "The Race" or the Belizean Grove? If not, why not?

Did you ever consider expanding the membership in the Belizean Grove to men?

Did you ever consider expanding the membership of "The Race" to other racial groups, including Caucasian people?

Did you ever consider it a conflict of interest to be a member of such exclusionary groups?


Those are my questions for day 1...
6.12.2009 6:09pm
Dilan Esper (mail) (www):
But is it likely that Congress thought in those same terms when they adopted the torture statute? Is there any evidence that it intended to adopt the body of international law on the subject, or that it saw the existence of an established body of foreign law as an advantage?

That's a weird question. I don't think courts refuse to use out-of-jurisdiction caselaw as persuasive authority without specific legislative intent that they are permitted to do so.

In other words, it isn't just UCC cases where courts will use persuasive authority from other states. If California has an trespass statute, and the question is whether, say, unauthorized access to computers constitutes a form of trespass, and there aren't any California cases on the subject, I would certainly expect the California courts to look at cases from other jurisdictions with similar statutes whether or not the legislature had specifically intended that the courts do so.

And, in actuality, I would argue that implementing the Torture Convention is a lot closer to the UCC anyway. The Convention specifically says that every state-party has to enact laws banning torture. The President signed it and the Senate ratified it. It seems to me that the reasonable legislative intention is that there is going to be a sort of uniform, transjurisdictional rule prohibiting torture. Under those circumstances, it seems mighty questionable to say that you can't look to authorities from other signatories which adopted a similar legal rule.
6.12.2009 6:11pm
Dave N (mail):
Gab asked:
Or is the Talmud not foreign or international?
Of course, Justice Scalia wrote the sentence Gab quoted shortly before this one:
Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause assuredly does not.
So in answer to Gab's question, it doesn't matter, since Justice Scalia was not trying to apply the Talmud to anything.
6.12.2009 6:19pm
Brent Peterson:
DangerMouse wrote:

My daily questions for Sotomayor:
*great questions snipped*

I, a partisan Democrat, wishes that Senator Cornyn had hired Dangermouse instead of Orin Kerr.
6.12.2009 6:22pm
Dilan Esper (mail) (www):
I, a partisan Democrat, wishes that Senator Cornyn had hired Dangermouse instead of Orin Kerr.

Yep, me too. Josh Marshall and Matt Yglesias have basically gotten this right-- it's amazing the extent to which a lot of conservatives want to fight Sotomayor on various grounds that are essentially proxies for her being Hispanic. In addition to being basically offensive, that's just about the most obviously losing political strategy imaginable given the present and future trends in the demographics of the country.

Again, I defend Sen. Cornyn for his questions. Even though I don't agree with his agenda, and even though I doubt it will actually end up working, this is the absolutely correct strategy for building opposition to a court nomination. He's fighting this on the merits and raising legitimate questions which Sotomayor's defenders need to have answers for.
6.12.2009 6:26pm
24AheadDotCom (mail) (www):
Dilan Esper says: It's not worth explaining what "la raza" really means to non-Spanish speakers. In any event, it doesn't mean "the race" in the usage the organization makes of it.

And, "rhubarb" doesn't mean "rhubarb" in the way that I use it. However, that doesn't really matter because everyone else uses "rhubarb" to mean the vegetable.

Likewise, whatever the NCLR wants to fancy "la raza" meaning - and no matter its historical roots - the fact remains that there are people who are definitely not "raza" and people who are, and that distinction is along racial lines. Would Fujimori be "raza"?
6.12.2009 6:28pm
24AheadDotCom (mail) (www):
Dilan Esper has more! it's amazing the extent to which a lot of conservatives want to fight Sotomayor on various grounds that are essentially proxies for her being Hispanic

Now, that's not really it, is it? Isn't it more how she's manifested the fact that she's Hispanic? That is, if a Republican whose only manifestation of being Hispanic were, say, watching soccer, then it wouldn't be an issue, right? The fact is that no political figure is really against her because of her being Hispanic per se; they just oppose the fact that she's manifested that by joining far-left racial power groups, constantly supporting AffAction, and so on.
6.12.2009 6:31pm
LarryA (mail) (www):
I don't expect anybody in the Senate to put a nominee to the test I suggest; because the Senate is just as gun-rights hostile as the Courts are; maybe moreso.
Really? Where did the overwhelming Senate support for the D.C. gun rights amendment, the national parks carry amendment, and the letter saying the Senators don’t want a new “assault weapons” ban come from?
I can't imagine why Cornyn wants to tip Sotomayor off in advance about the questions she'll have to answer.
It gives her time to prepare answers, thereby removing the possibility that she can claim she misspoke because she wasn’t expecting/didn't understand a question.
6.12.2009 6:36pm
Bored Lawyer:

So in answer to Gab's question, it doesn't matter, since Justice Scalia was not trying to apply the Talmud to anything


Actually, Scalia was using the Talmud as a contrast to what he believes the proper approach is to interpreting the due process clause. That's far removed from citing foreign law as authority.
6.12.2009 6:54pm
MarkField (mail):

I think you're only half right. Your proposed answer is snarky but not accurate. Art. I Sec. 8 Cl. 10 applies to the powers of Congress, not the judiciary.

If Congress chooses to define an offense under the Law of Nations, the judiciary undoubtedly has the authority to interpret that law. The controversial issue is when the Court uses international law the United States has not subscribed to.


In addition to Dilan's example, consider this issue:

Congress passes a law, claiming its authority for the law under the "law of nations" clause. Can the Court declare that the statute is unconstitutional because the issue is not part of the law of nations?

If it can't, then the result is that Congress gets to define the "law of nations" however it wants, no matter how absurd that may seem. If it can, then it must refer to an independent body of international law which sets out the boundaries of the law of nations.
6.12.2009 7:50pm
DangerMouse:
it's amazing the extent to which a lot of conservatives want to fight Sotomayor on various grounds that are essentially proxies for her being Hispanic.

Yeah, yeah, conservatives are all racists. Yawn. And it has nothing to do with the fact that SHE's the one who's joining radical exclusionary groups. Nope. The people who are in those groups aren't the racists, it's the people asking why Sotomayor joined such groups that are the racists.

The lib playbook never changes. Sotomayor joins an explicitly racial group, but conservatives are racist for asking about it. What, is this bizarro world?

Oh, and I have no problem attacking her on other grounds. But since racialist attitudes permeate her thinking, it seems appropriate to ask those questions.

By the way, when did you stop beating your wife?
6.12.2009 7:54pm
Andrew J. Lazarus (mail):
I wonder if Dangermouse knows that "race music" was the term for Southern African-American music. Does that make all those musicians racists? (Likewise "race movies".) Is there a real argument going on here about "La Raza" (also the tagline of a Latino-oriented radio station)? All I see is a sort of rhetorical gotcha game played only for and among people who are tired of demanding to see Obama's birth certificate.
6.12.2009 8:05pm
Dilan Esper (mail) (www):
Likewise, whatever the NCLR wants to fancy "la raza" meaning - and no matter its historical roots - the fact remains that there are people who are definitely not "raza" and people who are, and that distinction is along racial lines. Would Fujimori be "raza"?

Do you speak any Spanish?
6.12.2009 8:10pm
ShelbyC:
Anybody know the skinny behind the "Por La Raza todo. Fuera de La Raza nada" slogan? On its face, whatever "la raza" means, that doesn't sound good.
6.12.2009 8:38pm
Dilan Esper (mail) (www):
Anybody know the skinny behind the "Por La Raza todo. Fuera de La Raza nada" slogan? On its face, whatever "la raza" means, that doesn't sound good.

Well, first of all, that's MECHA, not NCLR. In other words, it has nothing to do with the group Sotomayor is a member of.

Second, MECHA is a Mexican and Chicano student activist group formed in the 1960's. Student groups that formed during the 1960's often have ridiculous, revolutionary language in their charters. (Ever hear of the Port Huron Statement?) It was that kind of an era and student groups didn't know any better.

Plenty of former members of MECHA have become productive members of society, politicians, judges, public officials, etc. And so far, none of them have turned out to be revolutionaries. So you have two choices. Either believe that they are all closet revolutionaries plotting against the US. Or that they just wanted to join a Hispanic student group while they were in college and didn't give a crap what was in the charter. I'd say the second is more likely.
6.12.2009 8:43pm
Owen Hutchins (mail):
Is there actually a question in Cornyn's drivel, or was that just grandstanding?
6.12.2009 9:12pm
Owen Hutchins (mail):
DangerMouse- La Raza means, "the People", as in, "the Community", regardless of how you want to pretend it means. It's right there on the group's website. In English.
6.12.2009 9:14pm
Desiderius:
Martinned,

"It would be interesting to hear about the practice of the thing, or even simply to hear whether he agreed to do this in order to shoot down Sotomayor or for some loftier purpose."

It's a teaching moment. OK's a prof. Occam's Razor.

Owen,

"Bringing a Message of Hope and Deliverance to White Christian America! A Message of Love NOT Hate!"
6.12.2009 9:19pm
cboldt (mail):
Really? Where did the overwhelming Senate support for the D.C. gun rights amendment, the national parks carry amendment, and the letter saying the Senators don't want a new "assault weapons" ban come from?
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The DC amendment came AFTER the Heller decision. Congress was plenty happy with the local ban on personal possession of a handgun at home, as long as the Courts were upholding it. As for not wanting to push a scary-looking weapons ban, the issue is one of timing, not inclination. Same with the private-sale loophole and mandatory registration. Congress would pass those tomorrow if it believed doing so was in the interest of incumbency protection. It was Congress that passed the 1934 NFA (struck down by a Federal Court as afoul of the 2nd amendment), and Congress that overlooks when Courts engage in outcome-oriented jurisprudence in order to avoid binding precedent.
.
I'll concede that the national parks amendment represents a concession to common sense.
.
All that being said, the point of my post was that no Senator will not challenge a nominee on the Presser, Miller, or Heller decisions, because doing so opens up a can of worms and risks exposing a fairly substantial house of cards, build on lies.
6.12.2009 10:11pm
The River Temoc (mail):
I can't imagine why Cornyn wants to tip Sotomayor off in advance about the questions she'll have to answer.

Obama's people have no doubt already prepped Sotomayor about what kinds of questions she'll have to answer, because she is paying courtesy calls on senators already. And hearings, the administration usually is in touch with congressional staff to find out what kind of questions will be asked at the hearing.
6.12.2009 10:31pm
24AheadDotCom (mail) (www):
Some very prime idiocy above.

1. The NCLR has funded at least one MEChA chapter.

2. Current MEChA members conduct segregated graduation ceremonies right there at UCLA; past members like TonyVillar, GilCedillo, and RaulGrijalva frequently act more like paid agents of the MexicanGovernment than patriotic Americans.

3. Some of the white defenders of the NCLR - even if they have perfect Spanish - would have a "great deal of trouble" convincing those who are actually "raza" that they're "raza" too. I'm sure white nationalist organizations use similar code words, such as having a different meaning for "The People" or "The Community" than the generally accepted definitions.
6.12.2009 10:56pm
The River Temoc (mail):
Did you ever consider expanding the membership of "The Race" to other racial groups, including Caucasian people?

Are you so certain that La Raza excludes non-Latinos from membership? The registration form on the La Raza website contains no questions concerning ethnicity.

Oh, and the organization is called the National Council of La Raza, or "La Raza" -- not the "The Race."
6.12.2009 11:06pm
The River Temoc (mail):
A right idiot wrote:

The NCLR is only a "mainstream Latino civil rights group" in the sense that many groups are more extreme than they are.

The link he provides in support of his contention that La Raza is the modern-day equivalent of the Black Panthers says that the group is funded by radical elements such as "the Ford Foundation, the U.S. government, ad major corporations such as HomeDepot and General Motors."

I shudder for the future of the Republic.
6.12.2009 11:11pm
The River Temoc (mail):
...Republican whose only manifestation of being Hispanic were, say, watching soccer...

You are a moron. QED.

(Then again, David Beckham did play for Real Madrid...)
6.12.2009 11:14pm
Eli Rabett (www):
No objection to Cornyn asking a question a day, but if he prefaces it with a right wing troll paragraph he deserves what he is going to get.
6.12.2009 11:48pm
Dilan Esper (mail) (www):
The NCLR has funded at least one MEChA chapter.

And if MECHA were some evil conspiracy, that would matter. In the real world, though, MECHA is a harmless college student group.

I don't know if you ever went to college, 24ahead, but if you did, and you had any experience with student activist groups, you'd know exactly how meaningless the MECHA charter is.

Current MEChA members conduct segregated graduation ceremonies right there at UCLA; past members like TonyVillar, GilCedillo, and RaulGrijalva frequently act more like paid agents of the MexicanGovernment than patriotic Americans.

24, you really need professional help. MECHA members graduate with everyone else. Like many student groups, they also have separate ceremonies at the time of graduation to honor their members. You make this sound sinister, but you apparently have no idea how graduation at a major university works.

As for Antonio Villaraigosa (for anyone reading this, since you are a bigot, you refuse to call the Mayor of Los Angeles, who unlike you is an extremely successful person, by the name he has gone by for decades, instead insisting on calling him "Tony Villar"), Gil Cedillo, and other Hispanic politicians, if you have evidence that they are committing treason, you can certainly present it to the Department of Justice. Of course, there is no evidence-- you just think that any successful Hispanic politician must be a potential subversive.

Some of the white defenders of the NCLR - even if they have perfect Spanish - would have a "great deal of trouble" convincing those who are actually "raza" that they're "raza" too. I'm sure white nationalist organizations use similar code words, such as having a different meaning for "The People" or "The Community" than the generally accepted definitions.

24, if you look at the NCLR's record, you will see a typical, traditional civil rights organization. Of course, to you, that's an abomination, but that's because you oppose civil rights for Hispanics. But given that there's nothing about NCLR that should offend a normal person (as opposed to bigoted lunatics), there's no reason to get all mad about "la raza".
6.12.2009 11:52pm
Bouldergeist (www):
Sotomayor:
Even treaties are not law in the US unless the treaty, when it is signed by the President, explicitly says that it becomes law.
Am I the only one who is shocked by this?

Take the International Covenant on Civil and Political Rights, for example. The only salient difference between it and its predecessor -- the Universal Declaration of Human Rights -- is that the ICCPR has teeth. Specifically, it states that each State Party undertakes to "ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity." ICCPR, art. 3, sec. 3(a). Accordingly, the only conceivable purpose of that treaty is to create enforceable rights.

Under Article 19 of the Vienna Convention on the Law of Treaties (we are not a signatory, but it has been treated in courts as authoritative), reservations may not be made if they are "incompatible with the object and purpose of the treaty." VCT, art. 19(3). Moreover, a signatory to a treaty "may not invoke the provisions of its internal law as justification for its failure to perform the treaty." Id., art. 27.

Under the Foster (v. Nielson, 27 U.S. 253, 314 (1829), overruled in part by United States v. Percheman, 32 U.S. 51 (1833) (reinterpreting treaty in light of new evidence regarding meaning of ambiguous term). doctrine, a court must ascertain whether the instrument was intended by its makers to establish directly enforceable rights, or only to impose an obligation on one of the political branches. See Frolova v. Union of Soviet Socialist Republics, 761 F.2d 30, 373 (7th Cir. 1985) ("Whether a treaty is self-executing is an issue for judicial interpretation."); Restatement (Third) of Foreign Relations Law of the United States § 111, cmt. h (2004) ("Whether an agreement is to be given effect without further legislation is an issue that a court must decide when a party seeks to invoke the agreement as law."). It is an objective analysis: Treaty provisions are self-executing if they “require no legislation to make them operative.” Whitney v. Robertson, 124 U.S. 190, 194 (1888).

"Courts of the United States have final authority to interpret an international agreement for purposes of applying it as law of the United States." Juda v. United States, 13 Cl. Ct. 667, 678 (Cl. Ct. 1987). "In construing a treaty … we first look to its terms to determine its meaning." United States v. Alvarez-Machain, 504 U.S. 655, 665 (1992). "In determining whether a treaty is self-executing courts look to the intent of the signatory parties as manifested by the language of the instrument, and if the instrument is uncertain, recourse must be had to the circumstances surrounding its execution." Diggs v. Richardson, 555 F.2d 841, 851 (D.C. Cir. 1976) (emphasis added). But for some inexplicable reason, American courts have completely abdicated this constitutional responsibility, consistently treating the ICCPR as a legal nullity on the strength of the non-self-execution declaration alone, and always in a cursory manner. E.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 (2004); Hain v. Gibson, 287 F.3d 1224 (10th Cir. 2002).

One wonders how, in light of the Supremacy Clause and its treatment of treaties, how the President and Senate have legal authority to enact a treaty without making it the supreme law of the land.
6.13.2009 7:11am
Sarcastro (www):
why does the racist NAACP only allow in blacks? And what about that ageist AARP? Why doesn't my schools alumni association allow in everyone?

Until these troubling questions are answered, I will refuse to belong to any groups!
6.13.2009 7:45am
Bouldergeist (www):
Sarcastro:
why does the racist NAACP only allow in blacks? And what about that ageist AARP? Why doesn't my schools alumni association allow in everyone?

Until these troubling questions are answered, I will refuse to belong to any groups!
Every clubhouse is free to admit who they want ... but as a consequence of ascending to the bench, judges freely accept restrictions on their conduct that others are not obliged to honor. Specifically, judges are prohibited from belonging to organizations whose membership policies discriminate against individuals based upon their gender. And this has tripped up male judicial candidates more than once:
Feminist lawyer Gloria Allred has written a letter to the Judiciary Committee raising questions about Puryear's nomination. She, too, doesn't buy his claim of ignorance about the club's discriminatory practices, noting that the club's "entire voting membership is male, "Lady members" are not allowed to vote, and no women have been proposed for Resident Member status that would afford voting privileges." [cite]
What's good for the gander is also good for the goose.
6.13.2009 9:37am
Bouldergeist (www):
Cornyn:
In my view, the Constitution does not give federal judges the "freedom of ideas" to devise new ways to limit the democratic process. Judges must follow the law and the Constitution. They are not "free" to enact "good ideas" into law when their "creative juices" flow. That is a job for the people acting through their elected branches, not a job for judges tasked with following the law. In light of Judge Sotomayor's address at the ACLU of Puerto Rico, I hope Judge Sotomayor can explain how she reconciles her views of foreign and international law with the properly limited role of the judiciary in a democratic society.
This is a great question. It seems to me that there is a great answer:

“International law is a part of our law,” The Paqueete Habana, 175 U.S. 677, 700 (1900), and has been an integral part of our law since the dawn of the Republic. E.g., Pennington v. Coxe, 6 U.S. 33 (1804). International human rights law is invariably recognized in our courts, Sosa v. Alvarez-Machain, 542 U.S. ___, 124 S.Ct. 2004.SCT.0000127, ¶ 100 (2004) (Versuslaw), having at least the status of federal common law. Filartiga v. Pena-Irala, 630 F.3d 876 (2d Cir. 1980). The United States Supreme Court reaffirmed this principle again in Roper v. Simmons, 543 U.S. ___ (2005), in holding the juvenile death penalty to be unconstitutional.

The key to understanding Roper is in Justice Scalia’s wilting dissent, wherein he accuses the Court of declaring “that the Constitution has changed,” and nullifying our country’s reservations to the International Covenant on Civil and Political Rights (ICCPR). Id., Scalia slip op. at 1, 16 (dissenting opinion). Scalia observed that the basic premise of the Court’s argument was “that American law should conform to the laws of the rest of the world,” attempting to refute the premise by pointing out numerous instances (e.g., the ‘exclusionary rule’ of Mapp v. Ohio) where our law is “distinctively American.” Id. at 18. But in every instance cited, American law granted more rights than recognized under jus cogens international law.

If “international law” has no impact on our law, Justice Scalia’s objections to Roper are irrefutable. After all, if laws enacted by our nation’s legislatures provide the “clearest and most reliable objective evidence of contemporary values,” Penry v. Lynaugh, 492 U.S. 302, 331 (1989), and most death penalty jurisdictions allow the execution of juvenile offenders, it is silly to say we have reached a “consensus” to the contrary. On the other hand, there’s something intrinsically embarrassing about our engaging in a practice so barbaric, even Saudi Arabia won’t do it.

It is said that the Bill of Rights is ‘not a ceiling, but a floor.’ While individual state constitutions routinely acknowledge rights not protected by federal law, e.g., Tattered Cover v. City of Thornton, 44 P.3d 1044 (Colo. 2002) (enhanced privacy rights for Coloradans), states cannot deprive their citizens of rights guaranteed by the federal Constitution. By the same logic, the Roper Court holds that, while our Constitution acknowledges more rights than jus cogens international law, it cannot deprive a person of rights recognized thereunder.

If I were a candidate, I'd be salivating at that question.
6.13.2009 9:55am
sbron:

"if you look at the NCLR's record, you will see a typical, traditional civil rights organization. Of course, to you, that's an abomination, but that's because you oppose civil rights for Hispanics."


I for one do not oppose civil rights for Hispanics. I oppose special privileges for Hispanics, in the form of preferential hiring and college admissions. I also oppose special privileges in the form of ignoring widespread violations by Hispanics of immigration law and laws against identity theft. The problem with NCLR, Tony Vilar and Gil Cedillo is that they want such special privileges for Latinos.
6.13.2009 10:29am
Ryan Waxx (mail):
Harmful to future Republican electoral chances? Check.


I hardly think that the "loss" of your vote matters.
6.13.2009 10:34am
sbron:
Re: the meaning of La Raza. Anyone who has lived in Southern California for 20+ years knows enough Spanish to know exactly what Raza means. As commonly used, the word has little to do with "La Raza Cosmica" or the People (gente or pueblo are Spanish for the latter.) Those of Mexican mestizo descent will often describe temselves as "Raza", even if, like Tony Vilar they are 3rd generation Americans. Mexicans who are indigenos are not Raza, nor are whites from Mexico (Criollos). Thus Raza has a very precise meaning that is an intersection of race and nationality.
6.13.2009 10:45am
byomtov (mail):
I sort of like the idea of posting questions in advance, though I agree with Eli Rabett about the intro paragraph. The procedure needs to be organized a little, since it's unreasonable for every Senator to start firing questions at will. But a public process that tries to ask sensible questions and gives the nominee a fair amount of time to answer doesn't seem all bad to me.

Confirmation hearings are pretty useless these days, it seems to me. Lots of platitudes and posturing all the way around, and usually nothing much really happens. So maybe this would lay the groundwork for a more informative and useful approach.
6.13.2009 11:09am
Ryan Waxx (mail):
I can't imagine why Cornyn wants to tip Sotomayor off in advance about the questions she'll have to answer.


The intended audience isn't her. So far, the questions he's "asked" are the kind of questions her handlers will already have anticipated unless they are complete morons. So even as we speak, she's already memorized non-answers to these questions, and would have done so regardless of what the senator is doing.

The intention appears to be to generate interest in these questions, perhaps enough to force the media to pay attention to them when they get asked instead of hiding information from their audience.
6.13.2009 11:11am
martinned (mail) (www):

The intended audience isn't her. So far, the questions he's "asked" are the kind of questions her handlers will already have anticipated unless they are complete morons. So even as we speak, she's already memorized non-answers to these questions, and would have done so regardless of what the senator is doing.

The intention appears to be to generate interest in these questions, perhaps enough to force the media to pay attention to them when they get asked instead of hiding information from their audience.

There's an inconsistency here: Since the answer is only ever going to be a "non-answer", why should the media care? Why do you accuse them of "hiding information" if all they're doing is exercising their sifting function by not spending too much time on a "non-answer"?

The point of this question is a type of push-polling. The asking of the question is a way of communicating to the senator's potential supporters that, no matter what "non-answer" Sotomayor comes up with, in reality she's one of those evil internationalists. As such, this is simply a way of rallying the troops, trying to get enough momentum to avoid a cloture vote, or at least to give the Senator an excuse to vote against her himself.
6.13.2009 11:18am
rosetta's stones:
Cornyn is well within his rights to ask questions, but that won't change the fact that he's a careerist political hack. He needs to be gone, and he can take the baton twirling queen Hutchinson with him.
6.13.2009 11:20am
Ken Arromdee:
Plenty of former members of MECHA have become productive members of society, politicians, judges, public officials, etc. And so far, none of them have turned out to be revolutionaries. So you have two choices. Either believe that they are all closet revolutionaries plotting against the US. Or that they just wanted to join a Hispanic student group while they were in college and didn't give a crap what was in the charter. I'd say the second is more likely.

The fact that someone joins an organization with such language doesn't imply that they support those things. Obviously, most didn't. But it does imply that they're far enough towards that organization's stated position that the organization itself is only a bit further out.

Would you accept "plenty of politicians are former members of the KKK, yet none of them have ever lynched anyone"?
6.13.2009 11:26am
Bouldergeist (www):
Waxx:
The intention appears to be to generate interest in these questions, perhaps enough to force the media to pay attention to them when they get asked instead of hiding information from their audience.
It would be nice if these questions actually got asked, and someone had to answer.

Think about it this way: If judges are free to disregard the law whenever its objective application leads to a result they cannot stomach, is there anything left of the rule of law?

For all his shortcomings, Robert Bork was spot-on: We don't live in a Republic governed by the rule of law, but under the iron rule of unelected and unaccountable judocrats. All we have is a tenancy-at-will in our liberties, as opposed to a portfolio of inalienable rights.
6.13.2009 11:27am
Ken Arromdee:
On the other hand, there’s something intrinsically embarassing about our engaging in a practice so barbaric, even Saudi Arabia won’t do it.

Authoritarian governments tend to have little quirks where just by chance, they happen to support something that some people in the West like. Sometimes they even support it to a degree that we can legitimately argue is too much. The Nazis were noted animal rights supporters, for instance, but we wouldn't say that anyone who doesn't support animal rights to the same degree as the Nazis is doing something so heinous even the Nazis would avoid it.

Or another example: the Saudis won't execute juveniles. They also won't execute important, politically connected people. Yet we don't think that their refusal to execute important, politically connected, people is worthy of emulation just because it's an area where even the dictatorship is more lenient than us.

(And in truth, it's not hard to Google it up and find that Saudi Arabia does indeed execute juveniles.)
6.13.2009 11:49am
Bouldergeist (www):
Ken A:
Authoritarian governments tend to have little quirks where just by chance, they happen to support something that some people in the West like. Sometimes they even support it to a degree that we can legitimately argue is too much. The Nazis were noted animal rights supporters, for instance, but we wouldn't say that anyone who doesn't support animal rights to the same degree as the Nazis is doing something so heinous even the Nazis would avoid it.
Perhaps a trifle hyperbolic, I admit, but it does make the point. We used to be the world leader in human rights but now, we have less rights than the average Ivan in Serbia, because the "rights" we supposedly have on paper are unenforceable.
6.13.2009 11:55am
Dilan Esper (mail) (www):
I for one do not oppose civil rights for Hispanics. I oppose special privileges for Hispanics, in the form of preferential hiring and college admissions. I also oppose special privileges in the form of ignoring widespread violations by Hispanics of immigration law and laws against identity theft. The problem with NCLR, Tony Vilar and Gil Cedillo is that they want such special privileges for Latinos.

Can we just make it clear that anyone who insists on calling Mayor Antonio Villaraigosa by his correct name, calling him "Tony Villar" instead, is a hateful, prejudiced, racist anti-Hispanic bigot? Because there really isn't any other reason for doing it.

It's basically equivalent of the racists who insisted on calling Muhammed Ali "Cassius Clay". Unfortunately, Villaraigosa can't repeatedly punch people in the face and ask "what's my name?" until they get it.
6.13.2009 2:33pm
Dilan Esper (mail) (www):
Re: the meaning of La Raza. Anyone who has lived in Southern California for 20+ years knows enough Spanish to know exactly what Raza means.

Do you speak any Spanish?

Have you been to the "Plaza de la Raza" in Lincoln Heights? Or do you think they won't let you in because you aren't Hispanic.

You may have been living here 20 years, but you must have been too closed-minded to learn any actual information about our Hispanic population.
6.13.2009 2:34pm
Dilan Esper (mail) (www):
The fact that someone joins an organization with such language doesn't imply that they support those things. Obviously, most didn't. But it does imply that they're far enough towards that organization's stated position that the organization itself is only a bit further out.

How does it imply that? Where's the proof that typical MECHA members on college campuses even know the content of the charter?

At least where I went to college, MECHA was essentially the Hispanic and Latin American Students Association. There wasn't another group. So Hispanics joined it for perfectly harmless reasons-- and they didn't give a poop about the charter.
6.13.2009 2:37pm
Dilan Esper (mail) (www):
More broadly, it's pretty amazing how so many conservatives are willing to simply jump to ridiculous conclusions about an alleged conspiratorial secret agenda of politically active Hispanics without there being any evidence in the actual voting records of these politicians of any subversive activity.

You'd almost think they simply make assumptions about Hispanics based on their ethnicity or something.

Seriously, guys, you are basically libeling people. Maybe you need to get to know some more Hispanics.
6.13.2009 2:40pm
MikeS (mail):
Sotomayor is also sympathetic to the exclusionist League of Women Voters, and even when eating at integrated restaurants will sometimes visit their segregated "women-only" rooms.
6.13.2009 3:32pm
methodact:
6.13.2009 5:05pm
methodact:
6.13.2009 5:12pm
Tony Tutins (mail):
Aside from a compressed lecture on self-executing vs. non-self-executing treaties, a dollop of civpro and a scoshe of conflict of laws, there was nothing of note in Sotomayor's talk. People, even judges, can get ideas from anywhere. If an argument from foreign law is applicable to US law, why not use it?

The most radical importation of foreign law into the US is of course Louisiana's adoption of France's Napoleonic Code. Long after it became part of the US, Louisiana kept its version of the old Roman civil code. Chafed by its many disadvantages but wanting to keep a civil code, Louisianans looked around for something more up-to-date. They settled on the revised French code of 1804 (the so-called Napoleonic Code mentioned in A Streetcar Named Desire), and adopted it in 1825.

There was one interesting tidbit in the last half minute or so, very applicable to the Ricci case. Have people noticed it?
6.13.2009 5:55pm
mattski:

hideous

From your link:

In short, said Miller &Chevalier partner Timothy O'Toole, "it looks pretty mainstream to me."
6.13.2009 5:58pm
Tony Tutins (mail):

methodact:
grotesque

Empathy did not mark Sotomayor's handling of this case. But the prisoner was going against the current: only 1 out of 740 prisoners gets his habeas petition granted:

A 2007 report by Vanderbilt University Law School and the National Center for State Courts, for example, showed that out of 2,384 randomly selected habeas corpus petitions filed by state prisoners in noncapital cases in 2003 and 2004, only seven had been granted.
6.13.2009 7:29pm
Ken Arromdee:
At least where I went to college, MECHA was essentially the Hispanic and Latin American Students Association. There wasn't another group.

Nobody would apply this reasoning to the KKK. "The KKK was the only general community service group available then. It was no worse than joining the Elks. I certainly didn't persecute any black people when I was a KKK member, and most people didn't even know that that was its purpose".
6.13.2009 11:24pm
Cato The Elder (mail):

Nobody would apply this reasoning to the KKK. "The KKK was the only general community service group available then. It was no worse than joining the Elks. I certainly didn't persecute any black people when I was a KKK member, and most people didn't even know that that was its purpose".

...!

Racist! Racist Racist Racist! Limbaugh-Hannity-Cheney-right-wing-noise-machine-Fox News-BUSH!

durrrr...

Obama
6.13.2009 11:32pm
byomtov (mail):
Nobody would apply this reasoning to the KKK. "The KKK was the only general community service group available then. It was no worse than joining the Elks. I certainly didn't persecute any black people when I was a KKK member, and most people didn't even know that that was its purpose".

Because it wouldn't be true.
6.14.2009 11:48am
Dilan Esper (mail) (www):
Nobody would apply this reasoning to the KKK.

That's right. And if there were evidence that MECHA had acted as a criminal conspiracy to commit acts of violence against racial, ethnic, and religious minorities (as the KKK did for decades), you'd have a point.

The whole point is that for some conservatives, a Hispanic civil rights group AUTOMATICALLY is equivalent to the KKK. But there's no reason-- other than anti-Hispanic prejudice-- why one would apply that presumption.
6.14.2009 3:12pm

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