While I wait for my copy of Ricci to finish printing, here are some quick thoughts on how this decision could influence the Sotomayor nomination.
First, the bottom line: This decision is very unlikely to have a significant effect on the outcome. I find it (almost) inconceivable that she will not be confirmed. A 5-4 reversal, even on a contentious, high-profile issue, will not change that.
The 5-4 nature of the Court's decision reinforces the argument that Sotomayor is a mainstream liberal nominee. The Court split along predictable, ideological lines. Her decision was supported by the Court's four liberals, including the Justice she was tapped to replace, so the case does not suggest that she is a radical or outside of the legal mainstream. Rather, it confirms what we've presumed: She's a liberal judge who is likely to agree with the Court's liberal justices in most closely divided cases in which the justices split along ideological lines.
On the other hand, the fact that it took the Court nearly 100 pages to resolve this question does cast a shadow over the Second Circuit panel's handling of the case, and may raise questions about her judgment. Initially, the panel upon which Sotomayor sat was ready to dispose of the case with an unpublished, unsigned summary order. Whatever the reasons for this (and we've seen some speculation), it's difficult to argue that this case was a simple no brainer of the sort that would justify that sort of resolution — and it's difficult to square the justifications for this disposition with the panel's subsequent decision to affirm the district court with a one paragraph, precedential opinion. The length of the Supreme Court's opinions (a 34-page majority, 39-page dissent, and two concurrences) is evidence that the case raised difficult and weighty issues. It reinforces the position of Judge Sotomayor's colleagues who criticized the panel's initial disposition and, on their own initiative (and without the filing of a petition for rehearing en banc), sought full court review of the case. Yet even if her handling of this case reflects poorly on her judgment, I do not see it as disqualifying, and I do not believe it will prevent her from being confirmed.
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Well, that's one way to look at it. Another is that this was a difficult case, as are all race-based cases, and the panel simply chose to affirm the lower court's decision, as is their right. Happens every day in circuit courts across the land. Regardless, as you say, can't see this impacting the nomination one way or another.
CS Monitor:Reverse Discrimination Rankles Voters
You say: "Sotomayor is a mainstream liberal nominee"
If by 'mainstream liberal' you mean "on the opposite side of 70% of Americans on race issues by supporting reverse discrimination", then, yes, she is 'mainstream' liberal. (And I suspect this nutty position is one reason why only about 20% of voters call themselves 'liberal' these days).
It's like you want to tell us the final score, before a good part of the game is even played. We all tend to believe she has the numbers for confirmation (isn't that what you're trying to say here?).
Let's hope for a robust exchange that garners more details about Judge Sotomayor's philosophy of judging, and more details about her work in the field thus far. (ie, the questions on Ricci that are no doubt being crafted in senatorial sub-offices as we type...
Open minds, and open ears tend to learn things, rather than those predicting the final score in advance.
Actually, it's easy to argue. Whatever you think of the majority's reasoning, this statement in the dissent is clearly accurate:
Anyone arguing to the contrary, please cite a Second Circuit or Supreme Court case suggesting that Title VII's disparate impact provisions violate its disparate treatment provisions or the Equal Protection Clause.
Maybe you mean there are no movement liberals? Your assessment of the ideological breakdown of the court is shared by many of those who probably year for the days of Brennan, etc.
In any event if those 4 aren't liberal then there are no conservatives on the court except for Thomas.
There clearly were sufficient facts to raise a prima facie case of a violation of Title VII were the city to certify the exam results. Had the city been sued by a member of the class receiving disparate impact, and had the city settled with the plaintiff by throwing out the exam results, would that also expose the city to Title VII liability?
Thanks for guessing, but try reading the opinion first.
Deciding cases for racial discrimination, for infringement of 2nd Amendment rights, for property takings by the government, and belonging to a discriminatory single-sex private club, all that is perfectly OK for a liberal activist justice who proclaims that she will use empathy for one side or the other, rather than law, to decide cases.
Could you at least list a series of non-disqualifying criteria for conservative justices, so when the next one gets nominated we won't have the typical liberal hysteria against that person? Because if there are such criteria, they have certainly never been applied for the conservative side of the court appointees.
Should I expect to see the majority's anguish in balancing oh-so-close issues before reaching a nail-biter conclusion, or should I expect a self-confident and long-winded opinion designed to persuade and provide guidance with respect to later cases, authoritative not so much because of widely accepted insight as much as because it attracted five ideologically arrayed votes from the current inhabitants of the relevant chairs?
Were these comments written by typing into a text translator, translating to another language, and then translating back to English? Yeesh.
I DO find it interesting that the majority here is voting to (extend?) apply title VII, an historically national, liberal act, in a manner that, more often that not, will benefit minority applicants. The dissent-- and I'm being crude here-- does the sleight-of-hand legal manoevering so often ascribed to patriarchal white power structures, in service of end-focused quotas.
Justices Stevens and Ginsburg are pretty strong "liberals," even by your convenient redefinition of the term. Justices Souter and Breyer are moderate "liberals," as they deviate on some issues.
Justice Kennedy is a moderate "conservative," the Chief Justice and Justice Alito are fairly standard-issue "conservatives," Justice Thomas is the originalist and Justice Scalia is the textualist. Scalia and Thomas will adhere to their doctrines even if the result is something that the "liberals" want.
This was NOT a no brainer of a case, and all 9 justices fully aggreed that major issues deserving of significant treatment were raised by the court. It hard to see even the dissent in this case NOT be a significant repudiation of Sotomayor's handling of the case.
Clearly in your case eyesay
BeautyLiberalism is in the eye of the beholder.That makes no sense whatsoever, and since it appears to be the talking point of the day, perhaps it should be refuted for the record.
There is no reason why a 3-judge panel should mirror the split of the SCOTUS.
Had Stevens, Ginsburg, and Souter been the 2d Circuit panel, the case might've been handled the same way. (N.b. that the 2d Circuit likely has a much heavier case load than the SCOTUS's.)
For that matter, a panel of Scalia, Roberts, and Thomas might have handled the case the same way, with a different result.
One advantage of a larger court is that differences of opinion are more likely to emerge.
No comprende English, senor?
Listen before you decide, at least.
Let the game be played before you acertain the outcome.
Hth.
My reaction to this is the opposite of eyesay's. The four liberal justices on the Supreme Court sometimes rule in ways that are far removed from the thoughts of the vast majority of American citizens. The decisions that come to mind are Carhart II and Heller, in which they decided that there is a constitutional right to partial-birth abortion but no such right to a gun. Those are not even remotely "mainstream" ideas.
Mainstream for legal academia? Perhaps. Mainstream compared to the rest of America? Hardly.
As much as I respect Prof. Adler, the larger issue is that, when discussing a very small sample size (e.g. nine), none of whom are remotely average, one simply cannot extrapolate from that to the other 300 million people in this country.
Well, from what I've heard, there are far worse candidates waiting in the wings. What's important is to shine a bright, harsh light on Sotomayor's statements and opinions, because as more people see her negatives, it costs Obama political capital. Hopefully, that retards his efforts to plunge this country deeper into collectivism. Really, it's the best one can hope for at this point.
It IS clearly a repudiation. As the dissenters in the en banc decision made clear, the Sotomayor panel ignored significant issues. And now all 9 justices on the Supreme Court concurred that a single paragraph opinion was inadequate and the decision to give summary judgement to the city were BOTH wrong.
Where did they say that?
One can ONLY reach the conclusion that Sotomayor is a "mainstream liberal nominee" if one stops at the "5-4 Decision" and refuses to even read the case. Even the Dissenters in this case repudiate Sotomayor's handling of the case on a procedural basis, and her complete disregard for the substantial evidence in the record (which even the District Court had the candor to acknowledge) that the City's fear of a disparate impact suit by unsuccessful minority candidates was merely a pretext for intentional discrimination against the successful candidates for purely political reasons - political reasons driven exclusively by racial politics.
I only hope that the three members of the dissent that are staying on the Court don't actually believe the vapid rationalization of their Dissenting Opinion - are Ginsberg, Stevens and Breyer really that dense? - but wrote the dissent solely to provide Sotomayor political cover for an otherwise indefensible decision. Yes, I know, such hypocrisy is unseemly, but I would rather believe that three members of our Supreme Court are hypocrites than the only alternative, that they are incompetent numbskulls.
Exactly so. As I noted in previous comment, polling shows 70% of Americans are with the SCOTUS majority on the New Haven case and reverse discrimination and against the court liberals and Judge Sotomayor. There is similar polling on the above cases, on some 1st Amendment cases. The boutique judicial-cultural liberalism held by the likes of Sotomayor (or Obama for that matter) is on the 30% of a 70%/30% divide.
The fact that President Obama in any case would be picking doctrinaire judicial liberal doesnt negate the fact that the nominee's judicial positions need to be challenged or the positions themselves are being implicitly supported with a 'yes' vote. The Senate Democrats will almost certainly follow their party leader's pick; easy vote but will have to explain their support for judicial liberalism to voters (play the 'empathy' card like Obama?)
The greater challenge is for the Republican Senators. If they profess positions at odds with Sotomayor, eg pro-2nd-A, they need to avoid the embarrassment of giving the nominee a pass (as they did with Justice Ginsburg), without devolving into a partisan food fight. To that end, Senator Cornyn's "Question of the Day" series seems to be going at it the right way. He is up to question 10 or so...
Why can't they be both?
Just askin'.
If no one points out an issue to me, I may write zero pages in rebuttal to it.
If someone *does* point it out, I may write 39 pages in rebuttal.
Given our 3-judge panels, it's unremarkable that they will sometimes miss issues.
That this is even a serious topic of debate re: Sotomayor is, frankly, kinda pitiful. Is this what we're to expect in future nominations? "Judge Smith, the Supreme Court reversed your panel's decision ... which your panel issued as an UNPUBLISHED DECISION. Didn't you think an opinion that was going to be reversed by the Supreme Court was important enough to publish???"
Well, they overruled the lower courts. That doesn't mean the lower courts were wrong. It could also mean that the Supreme Court created a new rule, or even overruled an old one.
It does no such thing. She is not a "mainstream" anything.
The other 30% think that the city could have developed a less-discriminatory test (at least according to CNN). One wonders what that result would be if people were actually aware of how far the city went to develop a neutral test (and one that tests crucial knowledge that firefighters must have).
However, because she hates white people, her hate is politically correct hate. She is "the right kind of racist".
Democrats (the party that started the KKK and have the only KKK memebe serving in Congress) will confirm her and tell themselves they are good people for doing so.
We have 4 ultra-liberal judges on that court, and 5 moderates. Sotomayor won't do anything to swing that balance.
It looks like this Fox News meme will just not go away...
indeed.
Hyesterical.
It is a "meme" because, well, you say so I guess.
Note that you can't address the point.
You want to take a guess as to why that is?
This is a fairly useless statement, since it entirely depends on one's view of where the center "should" be. To some people, we have 5 conservative judges and 4 far-right judges. To others, we have 4 leftists and 5 liberals. To others, some conservatives and liberals, or some other combination.
If the Court of Appeals wrote a long opinion upholding the trial court, then conservatives would say it was "making policy." If it issues a summary decision, they say "serious issues were not addressed." It's a no-win with the right wing, as usual, so it's best to ignore them as unserious, as usual.
It would still be a meme if I agreed with it. Richard Dawkins is an amazing scholar...
I did address the point, as did others. Let me just copy/paste my own comment:
I'm not sure what you mean by "wrong." But if you think SCOTUS created a new rule, what is that rule?
My take is that this case was tricky no matter how you look at it, so the CoA tried to touch it as little as possible, first by not issuing a precedential opinion at all, and later by issuing an opinion that was as noncommittal as possible. They were hoping it would go away, and now it has. If the Court of Appeals had written a detailed opinion here, the answer would have been wrong no matter what. This question needed to be sorted out by the Supremes themselves, and now it has been.
Given just how incredibly lame the GOP leadership is, and given how lame those generally on their side in the "blogosphere" are, that's probably right.
Of course, if one or both weren't so incredibly lame, she would have withdrawn already. I mean, seriously: for six years she was a member of a group that gave an award to someone who'd proposed genocide. How difficult could it be? Obviously, too difficult for the Adlers and GOP leaderships of this world.
If being reversed in this way is meaningful, does that mean I can assume that none of the current Supreme Court Justices ever had a decision reversed before they were appointed to the SCotUS?"
Yes, that is correct. We've already heard Sen. Cornyn's (Prof Kerr's?) statements that all 9 justices--in their opinions--criticized Judge Sotomayor's (but not the other two JCA's) handling of the case. It will get worse as the day goes on. I am sure that we will hear statements today to the effect that such a reversal is automatic grounds for rejection and that none of the current justices ever had a disposition of a trial court decision without opinion reversed. To allow her to be approved with such a stain on her record would be lowering the existing "no reversal" standard in an obvious pandering to affirmative action supporters.
The new rule: Abandoning an employment practice with a prima facie disparate impact is unlawful unless the employer has a strong basis in evidence to believe that the employment practice actually violates Title VII.
OK, that one sounds better than mine.
Still, it is interesting that the conservatives on the court took the position that the mere threat of costly litigation is not enough.
On the other hand, the four conservative justices never do that, right theo?
Remember, you are correct your position against partial-birth abortion is quite popular. But your position against MOST abortion is extremist and completely out of step with the public, which is why every pro-life President has to go to great lengths to deny that its nominees have made up their mind on Roe v. Wade, while pro-choice Presidents can openly nominate Roe supporters.
New Haven’s decision to toss out test results after a promotion test was administered is not unprecedented. Indeed, in the 1984 case Bushey v. New York State Civil Service Commission--decided eight years before Sotomayor became a judge--the Second Circuit considered a nearly identical case. Just like in Ricci, in Bushey white applicants significantly outperformed minority applicants on a promotion test, and the employer in Bushey responded by adjusting minority scores upward to render more non-whites eligible for promotion. The court upheld this rescoring of minority applicants, explaining that employers are allowed to “voluntarily compl[y]” with civil rights law by reconsidering tests that have an adverse impact on minorities.
Because Bushey has never been overruled, it is considered a binding precedent in the Second Circuit, and Judge Sotomayor was required to follow it when her panel was called upon to decide Ricci.
If ThinkProgress has any errors in that analysis, I am of course happy to learn of them.
My take on <i>Roe</i> is that it is bad law; abortion was obviously not a fundamental right at the time of the Founding that would enable it to be part of the Constitution. As states have traditionally been allowed to regulate medicine within their borders, <i>Roe</i> and its progeny offer another infringement upon that. This is a position shared by pro-lifers and pro-choicers who acknowledge that <i>Roe</i> is a horrible case.
The "conservative activist" version of <i>Roe</i> is to have a Constitution that outlaws abortion, in every state, by giving the unborn a right to life. No serious jurist, however conservative or pro-life, has ever proposed making that the rule. So no, conservatives do not play the same game.
That, however, actually involves a shred of legal analysis, rather than just doing as you do, which is whine incessantly about how, since I disagree with killing babies in the womb, that every other position I take must be insane. ROFLMAO.
Off the top of my head, here's one: Bushey was solely a statutory decision; it did not address the constitutional questions at all. Therefore, even if Bushey were binding 2nd circuit precedent standing squarely on point for the proposition that discarding test results based on fear of disparate impact did not violate Title VII, it would not be sufficient to resolve the Ricci case. (One wouldn't know that if one read the per curiam opinion, because Sotomayor et al. didn't even mention that the Ricci plaintiffs had raised a constitutional claim.)
"The new rule: Abandoning an employment practice with a prima facie disparate impact is unlawful unless the employer has a strong basis in evidence to believe that the employment practice actually violates Title VII."
Ok, but that's not what happened in Ricci. There was no prima facie disparate impact. As I have pointed out many times on the VC, the "four fifths four" does not apply to Ricci at least for the captain's exam. The sample sizes are too small. If the fire department had used a lottery then about 90% of the exam results would have violated a mechanical application of the "four fifths four." In other words, just because no blacks appeared in the top 9 scores does not in itself present even prima facie disparate impact.
And the decision was a 9-0 rejection. Even if the second circuit was 'wrong either way' the appropriate response would have been a detailed setting out of the issues and questions presented, the precedent binding on them if any, and their view of the correct answer. Such a judgement may even have assisted the Supreme Court in its decision.
There's no such thing as "abortion on demand", which is right-wing extremist anti-feminist spin, Theo.
You support overturning Roe and banning abortion. You've said so. And that's an extremist, unpopular position. The public supports Roe.
In any event, I wasn't commenting on what the Constitution said. I was commenting on your inane criticism of the liberals on the Court as taking positions that are outside the mainstream of American public opinion. The conservatives do it too. Heck, the conservatives even installed a President who lost the popular vote.
Setting aside that the public doesn't know what Roe says -- and people denying that it (combined with its companion Doe v. Bolton) allows abortion on demand help to keep it that way -- the public supports abortion in narrowly constrained circumstances.
1. The public supports Roe. Poll after poll shows that.
2. Doe v. Bolton requires that restrictions on abortion contain an exception to protect substantial threats to the woman's mental health. The position that a doctor's judgment that an abortion is necessary to protect a woman from, for instance, committing suicide should be respected is not an extreme position.
(And by the way, permitting abortions for serious threats to mental health is NOT "abortion on demand". I guess a woman can "demand" anything she wants, but a doctor isn't required to accede to the "demand". But then only anti-feminists use the dishonest term "abortion on demand" anyway. There's more liberal and less liberal abortion laws, not "abortion on demand".)
3. If the public really doesn't understand Doe and Roe, what the heck has the pro-life movement been doing all these years? You guys have had 36 years to explain it to them, yet they still don't get it?
I think it is mighty convenient for pro-lifers to NOT explain Roe and Doe, because they don't want to admit to themselves that their positions are grossly unpopular and extremist. But they are. If abortion rights really offended the American public, Roe would have been overturned by now, because the public would have made it a priority to get justices opposed to Roe onto the Supreme Court. Instead, pro-life groups go to great lengths to DENY that nominees like Alito and Roberts and Thomas are actually pro-life.
Abortion is legal in the US because legalized abortion is reasonably popular. If you pro-lifers want to change that, you need to convince the American public, and you haven't yet done so.
Oh, Dilan, nothing makes my day like having a misogynist like you tell me that I'm an ignorant anti-feminist. (I mean, last time, you told me that I didn't understand basic math, even with my chemical engineering degree and advanced quantum-mechanics courses.)
We've been over this. The public does not support Roe, nor does it support abortion on demand, which is exactly what we have in America. I'm fascinated to know why you think that elective abortion, without government restriction, for reasons other than legitimate physical health concerns, up through the sixth month, is somehow "mainstream" and "feminist."
As for the mainstream part: according to Zogby, only 4% of Americans support elective abortion (aka "abortion on demand") through the second trimester, which is the law under Roe and its progeny. Contrariwise, 56% of Americans support my position: life, rape, incest. Now, since you seem to have trouble with math, that means that 14 times more Americans are with me than are with you (and Roe).
For the feminist part: your definition of "feminism" is lean on acknowledging smart women for being so, and long on ensuring that you have easy access to lots of women, unencumbered by a child support obligation attached to your paycheck or her dad's shotgun in your face. Just saying.
Theo, stop your martyrdom. You aren't Jesus and you aren't Whitney Houston ("I'm every woman"). You are a woman who has anti-feminist opinions. That makes you an anti-feminist, and pointing that out does not make me misogynistic.
You really have to get over yourself. You apparently have an ego the size of the Pyramids, thinking that any attack on you is an attack on women.
We've been over this. The public does not support Roe, nor does it support abortion on demand, which is exactly what we have in America.
Theo, if we have abortion on demand, try "demanding" a third trimester abortion in most states. Or try "demanding" an abortion if you don't have the money to pay for it. Or try "demanding" an abortion at a military base. Or try "demanding" a partial birth abortion. Or try "demanding" an abortion in North Dakota anywhere but in the capital. Or try "demanding" an abortion without parental consent.
We don't have abortion on demand. Pro-lifers decided to violate their supposed religious beliefs against bearing false witness in order to lie and say we do, but we don't.
As for the mainstream part: according to Zogby, only 4% of Americans support elective abortion (aka "abortion on demand") through the second trimester, which is the law under Roe and its progeny.
Actually, every poll shows that the public supports Roe.
Look, in the end, if your position is so persuasive, HOW COME YOU FOLKS KEEP LOSING? YOU HAVE BEEN TRYING TO BAN ABORTIONS FOR 36 YEARS. YOU HAVE EVEN TRIED TO ENLIST YOUR NON-EXISTENT INVISIBLE MAN IN THE SKY IN SUPPORT. AND YET THE POLITICAL SYSTEM DOESN'T RESPOND TO YOU. YOU DON'T GET THE ANTI-ROE SUPREME COURT JUSTICES YOU NEED TO OVERTURN ROE. WHY DO YOU SUPPOSE THAT IS?
Pro-lifers LIE about their position's public support. The reality is that when the chips are down, the public is pro-choice. And that's why we continue to WIN and your side is a bunch of WHINING LOSERS. CRYBABIES. INFANTS WHO CAN'T GET THEIR WAY.
You are going to live for several decades, and guess what, Theo. WE ARE GOING TO GO ON HAVING ABORTIONS. BECAUSE YOUR VIEWS DON'T COUNT. AND UNTIL YOU PERSUADE ACTUAL PEOPLE INSTEAD OF CONTINUING TO WHINE ABOUT HOW THE PUBLIC SUPPOSEDLY DOESN'T UNDERSTAND ROE, YOU WILL CONTINUE TO LOSE. Which is just as well. Your side deserves to lose, because if you ever won, it would confine American women to slavery.
Now, from the top, in order: while I do not think that each and every attack on me is an act of misogyny, your particular attacks were incredibly misogynistic. The entire point of them was to demean me, as a woman, for holding views that you do not think women should be allowed to hold (and, of course, having the audacity to be a feminist woman who knows math and doesn't agree with you). That's misogyny.
As for my ego: your critique has everything to do with my audacity to point out that, contrary to your beliefs, I'm not a stupid idiot. The only reason that "ego" comes into play here, unlike with your other ridiculous ad hominems, is that the attacks were addressed at my intelligence, as opposed to my gender, age, religious beliefs, or relationship status. Smacking down those attacks will have an element of ego... so long as one defines female ego as "having a shred of self-esteem." (See, misogyny, supra.)
Finally, for the part in all caps: let's turn it around. Everyone with a shred of intellectual honesty admits that Roe is classic judicial activism, and states have always made their own medical laws. Why not, if you are convinced that we are in the minority, allow abortion to be put up for a vote? What would change? Why fight for abortion to not be a democratic process unless states would substantially change the status quo? Is that not the best evidence of the need for your rigged system and titled playing field?
Again, your innumeracy poses a problem: you fail to understand that legal academics are not "mainstream America." Our judiciary (as is our entire legal profession) is significantly more liberal than the rest of the population. Furthermore, it's a bit rich to be a member of the party that invented "Borking," then complain that our nominees aren't doing their conservative job.
For someone who uses the "anti-choice" and "anti-feminist" language, you are in no position to complain when pro-lifers give an accurate portrayal of the state of affairs in America. "Abortion on demand" describes the current law well: a woman only needs $400 and a willing doctor to kill her unborn child in the first six months of pregnancy.
As one more thought: I've often mentioned that your method of argument is entirely by ad hominem: in the abortion debate, you seem to be actually incapable of putting forth an argument that is not "pro-lifers are evil." You have never actually addressed the humanity of the unborn (and the inherent problems in deeming one class of people to be worthy of legal protection against murder, and another, not); rather, you scream about feminism, a subject about which you are wholly ignorant.
Dilan, I want to hear how you get off talking down to the majority of women by telling us that we are wrong about our bodies. Then I want you to defend that as feminism and call us the misogynists.
Laughable, really.
You might want to tell the abortion lobby that, because they seem to think that if Roe (or, rather, Casey) is overturned, that abortion will quickly be outlawed by democratically-elected representatives.
No, but pretending that feminism = a desire for casual sex without consequences makes you dishonest. But PERHAPS IF YOU HYSTERICALLY CLAIM IT IN ALL CAPITALS, IT WILL BE LESS DISHONEST. No, actually, turns out that all capitals doesn't help. It's still dishonest. Abortion is not a per se feminist issue at all. Sorry.
Are you suggesting that Bush 41 secretly knew that Souter was pro-choice, but concealed it really well -- so well that NOW hysterically screamed, "Stop Souter or women will die!" -- in order to support this imaginary pro-Roe majority? Or that Reagan deliberately sabotaged Bork to get to Kennedy? Because, otherwise, your ranting doesn't make any sense as a theory.
If consensual acts are protected by law because one of the consenting individual involved has a right to privacy, why can non-consensual violent acts against a non-consenting individual still lead to the disarming of the non-consenting individual under law? Aren't privacy of one's self and self defense two sides of the same coin?
I have never said that you, or Phyllis Schlafley, aren't allowed to hold the views you hold. I have said that those views make you anti-feminists, which you are.
But you have every right to oppose the liberation of women. The problem with you is that you pretend you don't.
Finally, for the part in all caps: let's turn it around. Everyone with a shred of intellectual honesty admits that Roe is classic judicial activism, and states have always made their own medical laws.
Actually, "judicial activism" is a Rush Limbaugh term. Nobody knows what it is.
There are certainly critics of Roe, but there are plenty of scholars and judges who say that it is an entirely correct interpretation of the Constitution.
Why not, if you are convinced that we are in the minority, allow abortion to be put up for a vote? What would change?
We don't need to, Theo. We've WON. You've LOST. Why would we give up our great victory?
The reality is that if Roe outraged the American public to the point that people want it overturned, you would have been able to do it in 36 years. Instead, even Republican Presidents say that they don't want to overturn Roe and refuse to attend pro-life rallies in person. Their Supreme Court nominees go to great lengths to testify that they have an open mind about Roe and support a constitutional right to privacy, even when they don't.
This is a political system reacting to a public that DOES NOT want Roe overturned.
Again, this thing you care about so much, this political position you advocate, is a LOSER. You've had 36 years and the public isn't convinced. We're gonna have millions of abortions for another 36 years. And if Roe were unpopular, we wouldn't.
Pardon my weak, feminine will, but I cannot resist a parting shot: considering that women are slightly more pro-life than men, how is attacking me qua a pro-life woman NOT the ultimate misogyny?
Because only an idiot would think that it's "misogynist" to attack a political position just because it is held by a slightly less tiny minority of women than men?
You are Phyllis Schlafley, Theo. An anti-feminist woman. And your pro-life position is a LOSER and has been one for 36 years.
I think Warren Rudman definitely knew that Souter was pro-choice. And Bush 41 decided to ask pro-choice Warren Rudman to vet the nominee. Put 2 and 2 together.
Remember, Bush 41 was pro-choice all his life. He only faked a conversion when he joined Reagan's ticket.
Again, though, pro-lifers are whining losers. If the public agreed with you, you'd have won by now. You'd have been able to deny confirmation to Clinton's justices for their support of the abominable Roe decision.
You couldn't, because THE PUBLIC LIKES ROE.
Stop whining and accept your losses like real men and women. We're gonna have legalized abortion for a long time, and there's nothing your puny little anti-feminist movement can do to stop it so stop claiming you have more support than you really have.
1. Get pro-lifers elected to the Presidency.
2. Get a commitment that they will appoint pro-life justices as a litmus test.
3. Force pro-choice politicians to conceal their position and refuse to admit they are pro-choice.
4. Deny confirmation to pro-choice judicial nominees.
5. Force pro-choice judicial nominees to conceal their position on abortion and profess to an open mind on the issue.
6. Use demonstrations and pressure to force the Supreme Court to switch to the pro-life side, the way the Supreme Court switched from invalidating to upholding New Deal laws in the 1930's.
In fact, here is what happened:
1. Pro-lifers who have been elected have said, as Bush 43 did, that they do not support overturning Roe until hearts and minds are changed.
2. Pro-life presidents swear abortion is not a litmus test for a judicial nominee.
3. Pro-life politicians conceal their positions and refuse to admit that they actually favor banning all abortions, by talking only about partial birth, parental consent, and the like.
4. Confirmation has been denied to pro-LIFE nominees.
5. Pro-life judicial nominees have sworn their commitment to the constitutional right of privacy (the very thing that pro-lifers claim doesn't exist) and profess to have an open mind on the abortion issue.
6. Pro-lifers have been demonstrating every year for 36 years, sending letters to the Court (as recounted by Scalia in Casey), etc., and haven't convinced anyone on the Court to switch their vote. In fact, the most notable vote switches were to the pro-choice side to produce the Casey plurality.
So yeah, that landscape really looks like a pro-life country, doesn't it?
But then, losers always think that their positions are really popular. It's easier than admitting that they are losers.
Until then, your rantings do not make sense.
Until then, your argument that abortion is a feminist issue (already untenable... would you oppose abortion if both men and women could get pregnant? only?) fails, and fails miserably.
Until then, we are not the losers in this debate; it is an ongoing competition that cannot be likened to any sport, since no sport would ever include so ridiculous a feature as the constitutionalisation of that which is not constitutional in order to give one side an almost insurmountable lead.
When you treat pro-life women like crap; when you scream in ALL CAPITALS that we are LOSERS; when you attack, rip, and tear into anyone who does not agree with you, you will find that the only people able to tolerate your presence are those with the same mindless allegiance as you have. So yes, you could look around and determine that, of everyone you know, no one is really pro-life, and, therefore, pro-lifers are a minority. Convenient for your world view that makes feminism synonymous with casual sex (and, given the way that you treat me and have treated Michelle Dulak Thompson, obviously not synonymous with respecting women), but inaccurate, nonetheless.
Got two words for you: silent majority. Polls say we are a majority. NOW is terrified that we are a majority, as David Nieporent pointed out. Senators in 1987 freaked out at the thought of Bork because we are a majority. The entire liberal agenda has focused on the courts because liberals do not want to take social issues to the voting booth, because we are a majority.
As for the LOSER!!111! issue: the civil rights movement lost in the 1850s. They lost in 1896. They lost again at the polls, lost again in the hearts and minds of Americans, and continued to lose up through the 1960s. They spent over a hundred years being LOSERS, and our country is infinitely better for their persistence. Such is the story of progress; I'm sad for you that you are too blinded by your ideology to see that.
Could you at least agree that needing and getting an abortion is not a thing to be desired, but rather that it is a sad and negative thing to abort a human fetus?
Or is even that to far for your humanity to stretch?
Theo, you are stacking the deck by ignoring the abortion rights people DO support.
But in any event, as I said, I have MUCH STRONGER EVIDENCE than any poll you can come up with. I just showed you how THE ENTIRE POLITICAL SYSTEM IN WASHINGTON acts as if we are a pro-choice country. Winner pro-choicers are open about their support of abortion rights. Loser pro-lifers are constantly denying their desire is to overturn Roe.
So basically, the people WHOSE JOB IT IS to monitor public opinion think you are full of crap, Theo. (Of course, who am I to dispute their sound judgment?)
Pro-lifers have lost for 36 years. Obviously, all those misleading polls they trumpet haven't convinced anybody. But then, losers never do.
As for the LOSER!!111! issue: the civil rights movement lost in the 1850s. They lost in 1896. They lost again at the polls, lost again in the hearts and minds of Americans, and continued to lose up through the 1960s.
The Civil Rights movement won quite a few cases before the 1960's and made constant progress.
But they also didn't pretend that their cause was more popular than it was.
The Civil Rights Movement was filled with stand up people who focused relentlessly on moving the ball forward. The pro-life movement is filled with losers who constantly whine about polls. There's a big difference.
Late term abortions are not things to be desired, because there are serious moral issues.
Early term abortions are serious forms of surgery and pharmacological interventions, and should perhaps be avoided for those reasons. But they don't raise serious moral issues.
In any event, theo is an annoying person who whines constantly about how the public really agrees with her and she represents all women when she is in fact an anti-feminist extremist whose views are out of step. So I enjoy throwing the fact that we continue to "kill babies" back in her face. That doesn't mean that abortion is generally something to be celebrated-- only that obnoxious pro-lifers need to be reminded at every opportunity that we're killing babies, killing babies, killing babies, and all their whining can't stop us. Because, you see, we aren't actually killing babies. We're keeping women equal, and letting them make their own decisions about sex, and that's what REALLY galls them. Because that's what really makes a loser mad-- that someone else is a winner.
Projection, much?
I did, theo. Why don't you go through my 11:38 am post point by point and show how in fact each data point is false?
Again, you are saying that your amateur reading of polls, informed by the fact that you are a pro-lifer who has been losing on this issue for 36 years, is a better determinant of public opinion than the considered actions of the entire political class whose job it is to read public opinion.
Meanwhile, my side continues to WIN.
As I said, real civil rights advocates don't whine about the polls. Martin Luther King never did. But then, pro-lifers have nothing at all in common with real civil rights struggles.
Yet you take personal credit. Amazing.
I read that post. I refuse to even begin commenting on it until you prove directly that which you've only tried to prove by proxy. You claim that the polls say something, but you haven't even provided a link. Not one, single solitary little link to prove that the majority of Americans agree with unrestricted abortion until viability.
By the way, I simply adore the continued attacks on my intellect... and how you continue to throw a fit when I point out the misogyny in those attacks. (Apparently, one now needs to be either a professional pollster or Dilan Esper in order to read polls correctly. My puny nanotechnologist's brain can't do it.)
At this point, it looks like you can't prove it. Looks like that "loser" language is just the tears of a sorry excuse for a man.
Why would we want it to come to a vote, Theo? We don't need a vote.
For your information, my side has WON on this issue for 36 years. We don't need to change ANYTHING about our strategy. It's WORKED.
It's your side of this issue that has been a dismal, utter failure. And it's because, when it gets down to brass tacks, you can cite all the polls you want, but the American public is actually not with you.
I have now invited you 3 times to answer my 11:38 post and tell me where I have my facts wrong, point by point. You have no answer to that. Indeed, you aren't even able to muster up an attempt.
Theo, until you accept the fact that your side has lost, over and over again, for 36 years, and what that means about the popularity of your position, you will continue to live in fantasyland. But while you live there, American women will continue to enjoy a right to an abortion. Which would you rather be: (1) a person who continually lies to herself about public opinion and whines about polls, or (2) a person who actually sits down and starts to take the steps to make her unpopular position more popular?
I hardly need a better example of your thinking; reality be damned, you're going to think what you want to think.
For the record, I do not "whine" about polls. You brought them up; I used them to bring you down. Seems to me like it's only "whining" when I can back myself up because you don't have any arguments left.
Finally... you're talking to a pro-life activist. Sadly for you, my JOB is in bioethics, and, specifically, in working with people (and the legislature) in the state to enact sensible, pro-life, pro-family policies. Really, it's just an extension of what I was doing during law school - things like working with pro-choicers to lobby our administration to change their policies, which would make it easier for students to be parents and complete their education.
But, then again, that's just another day in Dilan Esper's ad hominems gone horribly wrong.
Pardon me?
I already cited a poll showing that the super-majority of Americans oppose the central holding of Roe and its progeny. David Neiporent took care of most of the rest.
Note to Dilan: when you produce a steaming pile of b.s., and you are called out on most of the b.s., we are not required to give you a point-by-point refutation of each piece of excrement. At this time, you have repeatedly lied (i.e. by stating that the majority of the American public supports Roe), ignored the political reality of judicial nominations (i.e. "Borking"), and ignored the reality that the abortion issue cannot be put up to a vote because your side refuses to do so. It is nothing save utterly dishonest to then state that the lack of voting somehow equates to an inability to secure a winning election, or to state that your side doesn't put it up to a vote because the result would be the same.
For heaven's sake. I know you're on the losing side of this debate with me, but at least muster up some dignity.
Disingenuous. That's only because your side will "Bork" any nominee who says otherwise.
A for #3: again, Roe. Because of it, we can only talk about making bans on partial-birth abortion. (Did you miss the part where four of your nominees find it to be a constitutional right, despite the fact that the supermajority of Americans oppose it?)
Distinguish that from any other civil rights battle, please.
So I'm done, right? You now have to a) apologise for being a liar; and b) find a poll that supports your position, right?
Theo, you've done such a great job as a pro-life activist that we continue to abortion 1 million fetuses a year. You've done such a great job as a bioethicist that we continue to harvest stem cells from discarded embryos.
For someone with public opinion on your side, you've sure been amazingly unsuccessful, Theo.
So, I encourage you to continue on your misguided pro-life advocacy. As long as we have people like you on the other side, I can say with great confidence that America will still be a country with lots and lots of legal abortions far into the future.
That said, I congratulate you on your 2:39 a.m. post. You finally tried to come to grips with at least SOME of the facts I laid out. (Whining about polls, as you did in your earlier posts, is not a response, because my whole point was that POLITICAL PROFESSIONALS, who obviously know what polls say a lot more than you and I do, believe the public is strongly pro-Roe, a fact you can see in their actions.)
But in response: First, you have still ignored most of my points. You refuse to go through point-by-point, because you know you have no answers to most of them.
As for what you do say, you talk a lot about "Borking". But don't you understand, "Borking" only works when the public is behind you. Do you think the Democrats would have EVER been able to get away with denying the seating of a popular President's Supreme Court nominee over the issue of abortion rights if abortion rights were unpopular? We "Borked" Bork because the public is pro-choice and was outraged that this guy testified that he was ready to overturn Roe.
On the flip side, the Republicans didn't even TRY to Bork Ruth Bader Ginsburg, an open feminist who strongly supported abortion rights. Why not? If the public is so pro-life, surely they would have been scared to see such a clear feminist pro-choicer on the Court, right?
You see, again, complaining about Borking, just like complaining about poll wording, is whining, not activism. Borking is a tactic that winners use against the Supreme Court nominees of losers. It's a tactic that isn't available to losers against winners. And it is strong evidence that in fact the American public agrees with us, not you.
You further say that because of Roe, you can only talk about partial birth abortions. But that's not true. If Roe were unpopular, and abortion restrictions were popular, you could pass them, and challenge Roe. Indeed, that was done in the 1990's and that's how we got Casey. But did you notice recently South Dakota proposed doing exactly that, and the effort was rebuffed? And South Dakota's a pretty pro-life state.
Further, Roe doesn't stop you from talking about abortion during Supreme Court confirmation battles. Indeed, the right wing did that with the Bork nomination. And it got it's ass kicked. Since then, you've presented stealth nominees who swear that they've never even thought of overturning Roe. Why would you do this? Why not be open about it?
Theo, a movement that constantly conceals its real positions is a movement that knows it takes unpopular positions. Again, you folks have had THIRTY-SIX YEARS to build a groundswell of opposition to Roe. It hasn't happened, and you still have conservatives straining to deny that they want to overturn Roe, straining to affirm their belief in a constitutional right of privacy. That's basically evidence that your movement has convinced NOBODY.
You constantly make comparisons to actual civil rights battles. (Note, by the way, that your side is AGAINST the civil right of abortion. It is NOT a civil rights struggle.) Even if I were to accept the analogy, it is clear that in fact your movement has accomplished nothing in comparison to those struggles. Consider:
1. Black civil rights. The movement started with abolitionism, which succeeded in banning the slave trade in about 1820, succeeded in keeping slavery out of Kansas in the 1850's, banned slavery nationwide in the 1860's. Then came the civil rights movement, which won its first court case (Yick Wo v. Hopkins) in the 1880's, got Booker T. Washington an invitation to the White House in the early 1900's, got discriminatory zoning struck down in the 1920's, won a series of anti-discrimination court decisions in the 1930's, 1940's, and 1950's, culiminating in Brown, and got legislation passed in the 1960's. Victory after victory.
2. Feminism. Got women's sufferage in the early 20th Century, got women into the workplace in World War II, got the Pill approved in the early 1960's, Griswold in the mid-1960's, Title VII in 1964, Roe in 1973, Craig v. Boren and heightened scrutiny for all sex discrimination in the mid-1970's.
3. Gay rights. From Stonewall to now is exactly 40 years, and in that time we have gone from total nonrecognition and arrest on sodomy charges to gay marriage in several states, plus domestic partnerships and antidiscrimination laws all over the country.
So your "civil rights" movement is the only one that seems to be failing and not accomplishing a damned thing. That, again, is powerful evidence that the public doesn't really agree with you, no matter what you tell yourself.
As I said, though, keep with the activism. I'm glad that the pro-life community is full of incompetent activists.
Again, a single poll that says that the public approves of abortion.
Can't do it, can you, big boy?
Lots of talk about "losing" and a lot of complaints that, a year out of law school, I, as one individual, have yet to overturn the Supreme Court, but not a single poll.
Lots of talk about how the civil rights movements had all of their victories... spread out over centuries or more. Omit the losses, include the victories of one side, do the reverse for the other, and yes, it will look different. In reality, though, Dilan, we are looking at the last great civil rights battle... and it's only half time.
By the way, what do you think of the public opinion poll that came out showing that more Americans identify themselves as pro-life than as pro-choice? Or are you so stupid and arrogant as to think that you know better than other people as to what they think?
It's halftime, and you are losing 36 to nothing, Theo. If I were you, I wouldn't even bother coming out for the second half.
I certainly concede that the other civil rights movements faced plenty of defeats, but the difference is, the pro-life movement has never had a victory. Not one. In 36 years. We're still aborting away, and you folks can't do a thing to stop it. If you were actually popular, you could.
Single poll showing that I'm an extremist, Dilan, baby. Just one little poll. Can't be that hard for you to get it up, can it?
I showed you conclusive evidence that political professionals-- who are not rank amateurs like you but EXPERTS on public opinion-- clearly believe the public is pro-choice. That's stronger evidence that any poll you wish to pull out of your ass.
One other thing-- you are actually an anti-feminist extremist for reasons going far beyond abortion. Your views of sexuality, for instance, are batsh*t crazy.
If it's so apparent, it should be easy to prove. A minute, tops, on google. Go for it.
Not a single victory in 36 years? Oh, I beg to differ. Aside from the fact that a majority of Americans agree with us, let me enumerate the other ways in which your side is losing: only 17% of counties have an abortion provider. I guess people don't actually like performing abortions, unlike other common surgical procedures. Most abortionists are old; the younger set doesn't want to go into the profession. Most abortionists are male; women don't want to do it.
We've gotten the BAIPA, partial-birth abortion ban (even after Carhart I), 24-hyour waiting periods, mandatory counseling, parental notification... heck, we had spousal notification and spousal consent.
In fact, the only thing standing between us and a pro-life nation is the Supreme Court. Convincing 150 million Americans to agree with us was easy; it's just that, to circle back to where this all started, Ruthie and her band of jurists are far out of touch with America.
The question is not what we've done (although we've done a lot) since 1973; the question is what we would have accomplished but for those on the Court who revel in baby-killing. If the playing field were even somewhat level, abortion would be outlawed most everywhere.
Oddly enough, only 7% of American parents agree with your views of sexuality. That's roughly the same number who agree with you on abortion. 47% agree with me. :)
Apparently, your definition of "crazy" or "out of the mainstream" is "disagrees with Dilan Esper." Let's talk ego: you are so fantastically egotistical to think that your views, despite the copious amount of evidence to the contrary, are the only sane ones. ROFLMAO.
Well, no, the embryos aren't saying that, because the embryos can't actually think and don't have any interest in their personhood. But lucky for you, abortion really isn't murder so you don't have to worry about all the lives you have FAILED to save because of your incompetent activism.
Keep it up, Theo. As long as you are waving the flags for the pro-life cause, I have no doubt we will continue to have lots of safe, legal abortions in this country. The only thing that would ever worry me is if you switched over and became pro-choice-- THEN I'd say we should head for the hills.
So you've tried saying that I'm a man (easily disproved), that I'm scientifically illiterate (which worked until you found out that I smoke most of the world - yourself included - in that department), religious (whoops! atheist!), and in the minority (until I showed, beyond a doubt, that most of America agrees with me).
So now you've resorted to the less-specific "loser" and "impotent." Oh, of course, since I haven't overturned Supreme Court precedent in the last few months, I'm a total loser. Again, Dilan: I'm glad that none of the early feminists, who suffered harsher defeats and fewer victories than has the pro-life movement, didn't listen to the likes of you.
Neither will I. I'll continue being what my friend calls "a pro-choicer's worst nightmare," and continue to know that nothing scares the crap out of you more than me, dedicating my brain, my education, and my energy towards a cause that I care deeply about but disagree with you on.
Need a diaper, Dilan baby? Looks like you're peeing your pants....
Or has someone realised that he's lost mainstream America? that the battle over America's heart on the abortion issue has been won by pro-lifers?
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