Elaborating on his strong words about Judge Sotomayor's hearing performance, Georgetown law professor Louis Michael Seidman writes:
I want to elaborate on some of the (perhaps intemperate) comments I made last night. There's no denying that Republicans on the committee put Judge Sotomayor in a difficult moral position, and I need not elaborate on their own culpability for doing so. Either Judge Sotomayor had to misrepresent what she knows judges (all judges, conservative and liberal) do in hard cases, or she had to risk defeat. I'm willing to concede that this is not an easy choice, but I nonetheless think that she made a serious mistake. To his tremendous credit, President Obama has made an effort in his public statements to shift the official ideology of judging so that it has some contact with reality. Yesterday, Judge Sotomayor explicitly repudiated the President. Here are some of the consequences of this kind of unilateral disarmament:
1. It means that the only people who end up on the Supreme Court are either naïfs or cynics.
2. It means that every official act that a justice takes deepens the corrosive cognitive dissonance between what she pretends to do and what she actually does. This kind of deep hypocrisy imposes psychic costs that, at some point, are bound to have an effect on decision-making.
3. Anyone who knows anything about law knows that the official version is a lie, but many Americans don't know anything about law. To them, the official version sounds plausible. Reinforcing that version has a terrible effect on the possibility of serious public deliberation about constitutional law.
The pity is that all of this was probably unnecessary. The Democrats have sixty votes in the Senate. It would have taken some courage for Judge Sotomayor to have told the truth, but not much. She said yesterday that judges should never decide cases out of fear. Yesterday, she testified out of fear. We have a right to expect better of her.
Radford University's Matthew J. Franck replies:
For my part I find the president's account of the role of "empathy" in judging to be alarming, and I would welcome Judge Sotomayor's repudiation of his arguments—if I believed her. Frankly, I don't.
I think I know what you mean by the "official version" of what judges do. I agree with you that "applying law to facts" is too simplistic to capture the nuances of what Felix Frankfurter called "judicial judgment." But if it's not where I would stop, it's not a bad place to start. And if you mean to say that the political convictions of judges are either a) inevitably a part of their legal judgments or b) desirable elements of the same, then I disagree. Certainly their political convictions are not desirable elements in judicial judgment, and to the extent that they inevitably creep in, they should be minimized as close to the vanishing point as possible by every conscious effort a judge can muster.
Judge Sotomayor, in the speeches from which she now flees unconvincingly—sorry, I mean which she now assures us were misunderstood—takes the view that gender and ethnicity influence the convictions of the judge, which in turn influence legal outcomes. Like the president, she celebrated this rather than worrying about it. Now she sings a different tune.
Related Posts (on one page):
- More from Seidman on Sotomayor:
- Strong Words on Sotomayor:
In this layman's opinion, the law must be plausible on some level to the public in general. On some level it must make sense.
For Justices Easterbrook and Posner to rule that stare decisis prevents them from what, to the anyway, seems entirely logical: that the residents of the urban metropolis of DC and the residents of the urban metropolis of Chicago have the same fundamental right to defend their lives.
Is stare decisis a suicide pact?
The 7th and 2nd Circuits should have done what the 9th did...they should have determined that the 2nd does indeed apply to the states. Then Sotomayer and her panel should have sent Maloney back down to find the facts as to whether nunchuks are arms and in common use, etc. etc.
For the 2nd to summarily rule as they did means they didn't do their job.
"When a judge sits in equity, we are compelled to look at facts which are beyond the scope of the relevant legal issue before us. But when a judge sits in a court of law, it is inherent that the judge applies and sees only those facts which are relevant to the legal issue before the court.
District courts and those of original jurisdiction have the advantage of sitting in equity, while appellate courts must concern themselves with applying the law.
As a lower judge [assuming it is true], when called to sit as a judge in equity, I considered those facts which I saw as relevant, and other judges of a different background may not have considered. But as a judge sitting in law, particularly during my term as a judge on the appellate court, I considered only those facts, as would any other judge regardless of their background, which were relevant to the particular legal issue before the court."
That would allow her to easily segue into defending her decisions in Ricci and Didden. In Ricci the question was whether there was a potential claim for disparage impact; in Didden the question was whether the statute of limitations had expired.
While these are overly simplistic versions of the legal issues in the two cases, and ignores the other pressing legal issues, these are sufficient grounds to explain her positions. The grounds also have the added benefit of allowing her to sound like a well reasoned judge, instead of a stumbling bigot trying to distance herself from her past statements.
While there's no question she will be confirmed to the Supreme Court, the Republican party is doing an admirable job in its tangential attack on the Obama administration.
The President's idea that a case is either decided based upon preexisting blackletter law or else upon the judge's "empathy" is just as simplistic and misleading as the statement that a judge merely applies the law to the facts. Indeed, the statement that a judge merely applies the law to the facts much more closely fits what a judge really does, if one considers using the above-listed tools (which are, after all, tools of legal reasoning) to be part of applying the law.
I think there is some value here.
Everyone knows that all (or at least a vast majority of) politicians raise taxes. By the above reasoning, we should never get politicians to claim that they won't raise taxes, since we're just demanding the politician lie about what all politicians do.
However, even if a politician's claim that he won't raise taxes is a lie, making the statement has some bearing on his willingness to raise taxes. If he says he won't raise taxes, he'll probably do it anyway, but he won't do it as much as a politician who outright said that he's going to raise taxes as much as he wants.
If you think of a pledge to not use empathy as really meaning "I'm probably not going to use empathy as much as someone who loudly proclaims empathy to be a basic principle of justice", it may have some meaning, even if it's a lie.
According to Seidman, judges aren't really umpires, and judges who claim to be are either naive, or (more likely) are being dishonest. This is very bad, because it's misleading to the public. Okay, fair enough as a starting point, although I certainly disagree with his view of judging.
But his next step is, "Therefore, nobody should ask them what their view of judging is, and people who do ask them -- in this case, Republicans -- are bad people for doing so." Wha? Surely if misleading the public by outright lying is bad, then misleading the public by silence is almost as bad.
And he implies that, well, despite it being bad to lie, she just had to do so, in order to get on the court... but then he admits that in fact she didn't have to, because Republicans don't have the votes to stop her anyway.
I'm finding it very difficult to see the Republican "culpability" in all this.
Is this any different than saying that most folks involved in the process are a bunch of corrupt SOB's?
Only a tiny portion of even those who call themselves leftists or Democrats believe the dangerous sophistry that is "empathy-based" jurisprudence. That's tremendously puzzling and upsetting to those elite practitioners opining, and so it accordingly invites significant cognitive dissonance to the point they have to manufacture talismans of nefarious Republican Senators placing Sotomayor "under duress" despite the fact, by their own admittance, their faction already has the necessary votes to easily elevate her to the Supreme Court.
I'd note that a great number of cases are resolved before they ever reach a courtroom (which is as it should be). Those that reach a courtroom (generally) have a good basis for their indeterminacy on the record (granted in many such cases, it is the facts that need resolution and not the issues of law). And those that make it to the appeals process are essentially purely conflicts of law, the facts having been decided by juries.
The simplistic notion (propagated either through ignorance or dishonesty by the Republicans for political effect) that judging should be cut and dried, and that an answer obvious to all should be readily apparent -- if only the 'right' tools, methods and resources are used -- is a pernicious fiction. It was, to say the least, one of the big disappointments to me as an engineer and scientist new to law school. But that is the reality.
Cheers,
This lady is, in all likelihood, just not as intelligent as her educational accomplishments and current job position would otherwise indicate.
She is a liberal, and she has been nominated to replace a liberal. The democrats have 60 votes in the Senate.
She is not a leader, and there is no indication that she will evolve into one once on the court.
It is better for the GOP that they confirm a woman without the intellectual heft to convince any other justices of anything, than to run the risk that Obama might next nominate someone with more substance.
For the seventy-eleventh time now, Sotomayor has had to explain why her home team cheerleading remark does not mean that she is a ticking time bomb of a bigot who will give the Southwest back to Mexico once she's on the USSC as well as erasing all the gains that white men have made over the centuries that they have lived in the US.
Anything controversial she says will be seized upon, worried like a dog, cast into the worst possible light, and thown back into her face.
Cheers,
Vertical stare decisis is a suicide pact, yes.
( The horizontal variety is a bit more complex, but that's irrelevant here. )
Why is it so horrendous to imagine that there exists a Court that is not empowered to grant the relief you seek, even if you deserve it as a matter of law? Not every Court is competent to hear every claim (for instance, you may not appeal an administrative rule promulgated by an agency except in the CA-DC).
Law doesn't matter. Everything comes down to individuals and their whims. Frightening, isn't it?
Why are judges, ruling on more abstruse and complicated, multifaceted issues, held by simplistic Republicans to even the lax and fallible standards of baseball umpiring? Oh, rrrrriiiggght. Sound bites. "Legislating from the bench".... Thwarting the will of the people ... except for when the will of the people (assisted suicide, medical marijuana) ... is contrary to what these people would prefer....
Cheers,
Cheers,
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No more than any other principle is. Stare decisis is "good" when applied to a proper/just/correct decision, and applied in a correct fashion; and it is a bad thing when used to maintain unjust or erroneous law.
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In the context of the Presser case, stare decisis is misused two ways. First, the Circuits misread the binding precedent of Presser, and claim that their erroneous read is what SCOTUS has imposed from above, and then they use stare decisis to claim it would be error for them to reverse their own mistake.
Jeez, this Seidman character is a particularly malevolent little hack, no?
Does this dreck pass for scholarship in the legal profession? You guys are in deep doo doo, if so.
I think I know what you mean by the "official version" of what judges do. I agree with you that "applying law to facts" is too simplistic to capture the nuances of what Felix Frankfurter called "judicial judgment." But if it's not where I would stop, it's not a bad place to start. And if you mean to say that the political convictions of judges are either a) inevitably a part of their legal judgments or b) desirable elements of the same, then I disagree. Certainly their political convictions are not desirable elements in judicial judgment, and to the extent that they inevitably creep in, they should be minimized as close to the vanishing point as possible by every conscious effort a judge can muster.
Now Franck here, on the other hand, appears to advocate a professional practice that is in line with other professions' practices. I particularly like his quote about FF's term "judicial judgment".
I had that term in mind myself, all along, in these recent SoSo discussions. Politicians/lawyers speak of judicial "temperament", but the more precise term is "judgment", and that's the term used in most other professions, to describe senior professional practice.
As an engineer, imo, the most important thing a client gets from me is engineering judgment... not the tools I use, nor any given skillset, which any monkey can do... but rather my judgment as to how to define a problem... draw layered parameters around it... characterize it... qualify and quantify it... and define the inputs, outputs and potential solutions. It involves a complexity of craft that I suspect is not unlike that involved in judicial judgment, or any other professional practice.
In none of the above process should my personal views come to the fore, and further, those should be actively supressed. In fact, my personal need to make a buck can't/shouldn't stop me from offering clients the first solution in the book... the one that makes me zero dollars... which is "do nothing". I do this often, and it is my professional responsibility to do so, no matter my "personal convictions".
Seidman is a disgrace. You folks should blacklist this guy.
"Shuddup and be grateful, you sp***...."
Cheers,
Translation: Yesterday for a few minutes I had principles. Today I remembered that as a member of the modern left, nothing is more important than being in power.
Cheers,
I love watching members of a little clique reassure the other members, and of course themselves, how great and smart they are.
Touching, it is...
Cheers,
def law:
if jurisdication == false
sys.exit(1)
else:
outcome = apply_law(evidence)
return outcome
But I think we all know that's not how it works...
You mean other than the outright lies and incomprehensible drivel of her testimony, right?
and contrary to the known facts concerning her accomplishments
Yes, yes, she went to Yale!
Yale!
She is like super-duper smart and everything.
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"Temperament" and "judgment" aim to represent two different notions. Some people have outstanding judgment, but blow their stack or otherwise tend to rattle those who they interact with. The ability to maintain a calm, level, focused dialog and debate - even faced with obstinate jerks and ridiculous arguments - represents good temperament.
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The end result, the reasoned analysis and ultimate conclusion, those represent judgment.
And then what?
So a bunch of illegal enemy combatants are "frustrated"
So?
Loaded questions have been in fashion at least since Christ was asked about whether tribute should be paid to Rome. I can't fault anyone who follows the very Christian path of ducking the question.
@rosetta's stones: That analogy works, but only to a point. In engineering, there is more "objective truth" (cf. Senator Cornyn's seventh question). The bridge stands or it falls.
In law, judicial temprament is not only reflected in the things you list, but also in how the judge fills in the blanks, using the techniques that NYTwin81 already listed above. In the end, personal convictions inevitably come into play. Of course, that doesn't mean you have to be happy about it.
The problem, at least in the US, is that at least since the Regan era conservatives have been pushing for getting "the right guy" on the court, in order to fix past mistakes. This was a fair enough position to take, but it increased the political pressure on the confirmation process, bringing judicial realism ever further to the forefront. For the time being, that cannot be undone, so everybody's stuck singing the same old song and dancing the same old dance.
The Republicans aren't promoting the idea that justice should be cut and dried, but rather that justice should be fair.
The idea of using "empathy" in judging suggests that a sympathetic plaintiff should be granted relief where a similarly situated, but less sympathetic, plaintiff should not be granted relief.
Maybe it's the rabid conservative in me talking, but this sounds like a good basis for a judicial system.
Here's where you're wrong.This I found out.
A great example of such was when I, as a scientist/engineer new to the filed of law, was given a side of the argument in moot court that would not have been my personal preference to argue. One of the moot court judges (an actual judge in real life), following the argument, asked me afterwards whether I indeed held that side. I said I did not. She told me that I was very convincing (and apparently reasonably effective). Forget your calipers and computers. Even if they make it through Frye/Daubert, the courts have a preference (and in fact a requirement) for the human element; forensic or documentary evidence cannot stand by itself, but for historical reasons requires a human to "validate" (or introduce) it (this in part a remnant of our adversary system of law, but in part due to the historical belief that only human "witnesses" can actually proffer reliable evidence).
Cheers,
Only a tiny portion of even those who call themselves leftists or Democrats believe the dangerous sophistry that is "empathy-based" jurisprudence."
You should include Frank Ricci in the empathy based jurisprudence group unless his testimony addresses something other than the merits and issues of his own claim and the unfairness of the DC and 2d Circuit results.
Oh, that's right, Cheney is driving around the country in a black van and just sweeping "brown" people of the street and sending them to Gitmo!
Silly me.
Again, you leftists can no longer be parodied.
I think this illustrates two of the problems plaguing the debate:
1) When legal liberals (or people like Richard Posner) say that "many areas of the law are open textured and indeterminate [and] that the legal material frequently . . . must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments," many non-liberals translate this as: "judges should just vote however they feel, based on which litigant they like more or which outcome will better achieve their aim of accomplishing by fiat what they couldn't achieve at the ballot box."
I think this translation is quite wrong. First, it ignores the significant restraints that everyone recognizes the law to impose. If a statute clearly controls the outcome (and isn't unconstitutional), I don't think anyone disputes that the judge's role is to apply it, even if he disagrees with it. The problem is that lots of cases -- and particularly those cases that get to the Supreme Court -- cannot be decided on that basis. Even at the Court of Appeals level, a huge percentage of cases are decided unanimously, which suggests that even legal liberals see the law as highly constraining when it is actually on point. Second, to say that contestable presuppositions and moral judgments are inevitable is not to say that a judge should just rule in the way he finds most personally beneficial. Rather, it just acknowledges that consequentialism is often inevitable and that consequentialism inherently involves moral judgments. But the consequences you can pursue can come in all varieties, from "this result may get me a lucrative book deal" to "this result will be more administrable for lower courts" to "this result will require the political branches to revisit the issue, which will allow debate and deliberation." Those all reflect value judgments, just not of the same sort.
2) Many liberals believe that conservative endorsement of textualism, originalism, and judicial modesty is (a) in part just a disingenuous pose that allows them to enact their own policy preferences while claiming to do nothing of the sort, and (b) a position that is already fraught with "contestable presuppositions, empirical assumptions, and moral judgments."
With regard to (a), consider the recent study that found that conservative jurists tended to reach conservative conclusions, whether they described themselves as originalists, pragmatists, or by any other label. Or consider the case of Parents Involved, which was decided quite explicitly on the basis of moral judgments about racial discrimination, combined with consequentialism, rather than on textualism or originalism. (Indeed, to the best of my knowledge, it would be impossible to read the originalist sources as dictating complete colorblindness.)
With regard to (b), consider the fact that an embrace of judicial modesty, or an embrace of certain methods of interpretation, are themselves essentially value judgments. To say, for example, that courts should not strike down the will of the people except in extraordinary circumstances is perfectly reasonable, but it's a position that's based on contestable beliefs about the proper role of the judiciary in a representative democracy.
Which is all to say: this debate generates more heat than light, in part because the two sides disbelieve and mischaracterize each other's positions.
What is your basis for saying this? Do you think that they just hand out summas at Princeton on a silver platter or something?
Judicial realism isn't an idealogy, it's an explanation of the way judges actually operate (as zuch explained). We'd all probably agree that it would best if judges were somehow able to put aside their biases and rule objectively, but that's impossible. We have to live in the world as it actually is, not the one we want.*
*I'm still waiting for my personal jet pack to take me to work every day.
I know personally a doctor who was convicted of sexual assault on a patient largely because the judge was sympathetic to the accuser, a poor, minority woman who made up the whole thing and wrecked the doctor's career even though he won on appeal. (This case was extensively written about by Dorothy Rabinowitz.)
Empathy is a code word for something quite different.
That's what I thought, too. Since the two categories of "incorporated" and "fundamental" are identical, the whole thing is just an exercise in common law lawmaking by the Court. Which one is the cart and which one the horse is just a question of retoric.
Extremely off topic, but still: Yes, that's pretty much what they did after 9/11. Ask mr. Iqbal.
I mean, if by "the country" you mean Afghanistan, that's not an entirely inaccurate description of what happened. Loosely speaking.
Just to throw another log on the fire, I'd note that the rich and powerful have many means at their disposal to effect their aims. They hardly need recourse to courts. Even a perfectly "fair" (if that is what is indeed desired) court, therefore, will most often upset the biggest apple carts, because such are the case that come before them. Is that "unfair"? Is that undesirable?
Cheers,
Yes, yes, she went to Princeton!
Princeton!
She is just so smart. I mean, I'm blown away by her performance thus far...
Hysterical.
And Wiki, citing claims, is now "fact"
Again, parodying you people isn't possible anymore.
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I don't take the criticism as that her argument is circular. I take it that she's putting the cart before the horse. That is, she's stating that incorporation leads to a finding of fundamental. Another way to look at her point is that Circuit Courts lack the power to find a right to be fundamental; and that the signal from SCOTUS that a right is fundamental is a clear statement from SCOTUS "we hold that such and so right is incorporated." If and when (and not until) that utterance appears, a right becomes fundamental.
Of course it's an exercise in lawmaking, but to hear her tell it, she was somehow bound by prior precedent from ruling that the Second Amendment wasn't incorporated because... it's not fundamental, which is to say, it's never been incorporated? Can't she just admit that she personally doesn't think it should be incorporated?
That is nothing like what happened and you have no, that would be zero, facts to prove otherwise.
Its funny, despite all these innocent people being in Gitmo, Obama still is detaining them, and arguing they can be detained indefinetly.
Oh, and then there is this:
March on in your silliness now.
Among other reasons, because she said "My record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case."
Anyone who got all the education she got, and actually understood it, would know that this is a false statement (her record is actually logically incapable of showing this.)
Who was never sent to Gitmo and is a convicted criminal and had his day(s) in court.
You do understand your link has nothing to do with what I said, right?
First, there is such as a thing as a "bad judge". Every lawyer has run across them. To give two examples-
1. When I spent my first summer clerking, there was a (recently retired) judge who was notorious, because he believed the only precedent he had to follow was the precedent of the immediately superior District Court of Appeals for that state. State Supreme Court? No. SCOTUS? Heck, no. Persuasive authority from another (same state) District Court of Appeals? Didn't want to see it. Either you brought in the statute, a state treatise (there were a few) or a decision from the immediately superior court of appeals. Yes, he got reversed a fair amount (and then would follow that precedent :) ). But pity the poor lawyer who didn't know that about him and whipped out, say, a SCOTUS case.
2. I recently had the pleasure of observing a case in front of a trial judge where the action was clearly barred by the SOL. The judge acknowledged this, but wanted to hear it anyway because, as she explained, it sounded so unfair. Umm... unfair perhaps to the party that has to go through discovery needlessly, perhaps.
That said, most "hard" cases come in two varieties-
1. A dispute of facts. These really aren't hard; this is what juries (or, in the case of a bench trial, the judge) is for. Litigation, y'know, finding the truth.
2. A dispute of law. This is hard. What everyone forgets is that there really are often competing "laws" or "methods of interpretation" in difficult cases. If there weren't, we wouldn't have nine justices on the Supreme Court. Here's some examples-
a. What do you do when you have equally compelling sources of law in conflict. For example, the right to free speech and the right to a fair and impartial jury? This comes up in the context of clearing the courtroom/gagging the press. A decision has to be made.
b. What if you have a conflict between the text of the Constitution and "Super Precedent" + the structure of the Constitution? No, not abortion. The 11th Amendment.
The challenge for most people, and I think what many learn through law school, is that there has to be a balance. First, there is the recognition that there are laws, and there has to be some degree of certainty in the application of those laws, and change, when it comes, often comes gradually (reliance interests). Without that certainty, without something to bind the lawgivers and the law interpreters, we are not a nation of laws, but of whims.
But with that understanding is that words and language are often indeterminate, and in this huge legal structure we have created, there will be times when there are conflicts. Decisions have to be made to resolve those conflicts. And there is no law about how to decide those conflicts (because if there was, then there'd have to be a law to decide that law, and a law to decide that law so on ad infinitum).
Fair, evenhanded, applied without preference to class, station, wealth, race, religion, eye color, preferred sock brand, or any other standard by which we might judge people.
Remember that old canard that "justice is blind"?
So the courts should be the realm of the poor and/or powerless? A rich defendant should spend his money lobbying in Congress instead of turning to the courts for redress? According to such a system, a poor individual who steals a BMW should be allowed to keep the vehicle, and the owner should ask the legislature to buy him a new one. But if the wealthy owner "steals" his BMW back, the poor individual has recourse in court to demand "his" BMW be returned.
An interesting concept for a legal system, although ultimately fatalistic.
No, martinned, the issue isn't quite so simple as all that, and if I might again be so insolent as to bring up our previous discussion, you're allowing the typical technically-illiterate lawyer trait to shine through. You know little of engineering, I suspect.
When the Mackinac Bridge was proposed, 2 design teams practically fought gunfights over their faction's design proposals, both saying the other guy's would wind up crashing to the bottom of the Strait. Google for the "body count", if you'd like.
And think about the global warming kerfuffle, where the layered parameters I spoke of are so tangled and confused. People are attempting to engineer the climate. How's that process going? Swimmingly? Or is there some "minor disagreement"?
Now add in regulatory compliance, present and future finance, and any other of dozens of layers of complexity... all critical portions of the problem matrix. All requiring weighting, and yes, judgment. That is professional practice, in engineering and I suspect all other professions.
Senior professional practice in any profession is composed of these situations.
You see a bridge... I see quite a bit more than a bridge. I have the judgment necessary to do so. You don't, and I understand that, but I also have the judgment necessary to see how a professional judgment is overlaid onto other professions, and you don't, and that I don't understand. It does inform me as to reasons why you might be attracted to such as this Seidman hack, however.
Again, your technical illiteracy is shining through. You seem to think all problems have a given, and an equation, and a solution. You'll never make it as an engineer. ;-)
In the end, personal convictions inevitably come into play.
Well yes, you and Seidman think so, and more's the pity, because professional practice is not to involve personal conviction. Them's the rulz, bud, I don't make 'em, I just play by 'em. You gotta feel this one in your heart, if you're a professional.
The problem, at least in the US, is that at least since the Regan era conservatives have been pushing for getting "the right guy" on the court, in order to fix past mistakes.
Actually, I think you misread the history of the courts in this country. An era of wildly expansive rulings preceded this phase you think is present now. I don't think many disagree with that characterization, but correct me if I'm wrong.
I'm not sure if that would be appropriate for a confirmation hearing. (Although given the amount of liberty US judges and justices take to speak out in public about everything and then some, I'm not sure why not.)
That depends on whether the incorporation question was properly viewed as a matter of first impression, or whether the application of the 2nd amendment to the states was foreclosed by pre-incorporation precedent. There are reasonable views on both sides of that question, and the decision of any one circuit is fairly irrelevant, given that the matter will be decided by SCOTUS sooner or later, and probably in the next term.
I don't think that cuts the way you want it to.
The only responsive answers would have been yes and no, and he gave neither.
I acknowledged that in my previous comment. That doesn't mean, though, that I was wrong to start the trend of politication [sp?] of the confirmation process, and its increased political emphasis, in the Reagan era.
You do this an awful lot, you know. Make insinuations that people who disagree with you couldn't have possibly delved into the Law or legal philosophy deeply enough, that one needs to be the Sterling Professor of Cheap Silverware in order to disagree with this notion of "empathy-based" judging. I'm not a licensed practitioner or anything, I haven't taken the bar, but I love the logic in the law and also realize that to go to toe-to-toe with scholars one needs to take the time to carefully research all the relevant ideas, and indeed I feel most people here duly take pains do so. It's time you're called out for your arrogant rhetorical tactics.
But with that understanding is that words and language are often indeterminate, and in this huge legal structure we have created, there will be times when there are conflicts. Decisions have to be made to resolve those conflicts. And there is no law about how to decide those conflicts (because if there was, then there'd have to be a law to decide that law, and a law to decide that law so on ad infinitum).
I urge you all to review loki's comment above, and I'll have to go back and read more of what he's typed above, because he seems to be on to the sort of judicial judgment that I'm driving at here... judgment that's used in every other profession in the land... save the one Zeidman apparently wants to corrupt.
Thank you for your posts and please write more. I've learned a lot from them.
I agree with this completely. Your posts are quite edifying even if we do disagree.
Um, the question was stupid.
But again, its funny, despite all these innocent people being in Gitmo, Obama still is detaining them, and arguing they can be detained indefinitely.
Finally, you people really are beyond parody.
I'm sorry if I disturbed a chip on your shoulder. I no more criticize the ability of non-lawyers to speak about legal issues than I do non-doctors to speak about medical issues (or, heck, non-auto mechanics to explain to me what's wrong with my fueel-injection). It was just a way of introducing a few funny anecdotes. I do think that studying something for three years and practicing in a field helps you understand some intricacies of an issue; but if it makes you feel better, there are many lawyers (and law professors, some of whom write for this blog) that disagree with empathy-based judging. I might also point out that I didn't actually write anything about empathy-based judging. If it makes you feel better, I have no idea what "empathy-based" judging means, so I can't tell you if I support it or not.
The question would only be stupid if the answer were self-evident. Since I cannot possibly know what facts you relied on, the answer is not self-evident.
You have now twice twice attacked me for asking the question, twice said I am part of some group that cannot be parodied, and twice declined to answer the question.
Sure he would. Similarly, if a white man said he dreamt of the day that the first white man was selected to be on the Supreme Court, the day that the first white man was elected President, the day the first white man set foot on the moon, etc., we'd all think he was an idiot, and we'd make fun of him. Sotomayor's statement was cheerleading, aspirational -- note the use of "I would hope" instead of "obviously" -- for a group and a gender who has been historically at the bottom looking up, not at the top looking down.
There's an excellent letter to the editor in the NY Times today, by a Denise Wilbur that explains the source of the objection to the "wise Latina," and the basis for these ridiculous comparisons: [Republican senators assume] that while this Hispanic woman has an identity, the average white Republican senator does not, and that his race, class, and ethnic background play no role in his work.
Do we accept the idea that wealthy, educated white men are a blank slate, while anyone else comes freighted with unpleasant baggage?
Because, like Miers, Sotomayor was the President's personal lawyer with no judicial experience or record of scholarship?
Why didn't Bush nominate the twins' pediatrician for Surgeon General?
Or Sanjay Gupta?
Gupta is far more qualified for the post than the twins' pediatrician would be.
If you accept Wikipedia's operational definition of the Surgeon General as "the leading spokesperson on matters of public health in the United States," then someone who has for years been providing health information to members of the public in the United States would seem to be a good fit -- better than someone who's used to communicating with patients and parents one-on-one. Further, unlike the twins' pediatrician, Gupta has scholarly and leadership posts in his specialty.
martinned, I think you got this sentence scrambled, but I'll take it that you're again asserting that there was a "Reagan era" departure independent of a previous departure. There wasn't, and again, I believe all scholarship I've read supports one departure begetting the following departure, or perhaps more precisely... a departure as restoration, and a rejection of Seidman-ism.
All departures are subject to the political process, I think you'd agree, so no sense whining about "political emphasis". It's SOP that judges will be reviewed against a backdrop formed by that first departure. That is what we are witnessing today in the US Senate, in all its cat-herding, incumbent protecting, oxen-goring avoiding, campaign contribution soliciting glory.
Why is that? In Heller, the Supreme Court didn't reach the question of incorporation.
(By the way, the difference between the residents of D.C. and the residents of Chicago is this: the residents of D.C. live in a federal enclave. That makes them distinguishable from the residents of Chicago.)
"The real corosive is the ideology of judicial realism."
A reply was made
"Judicial realism isn't an idealogy, it's an explanation of the way judges actually operate (as zuch explained). We'd all probably agree that it would best if judges were somehow able to put aside their biases and rule objectively, but that's impossible. We have to live in the world as it actually is, not the one we want."
I would reply that it has become an ideology and by your terms everything is an ideology. After all if objectivity and the supression of bias are impossible, that includes realism. It is under its own terms just an ideology for destroying the idea and ideal of objectivity.
I agree we have to live with the world as it is. I am living in it by opposing the predominant ideology of judicial realism that is dominant in our legal culture. It is sure that if no one ever tried to make a rocket jet pack we would never have one. Remember when they said that heaver than air flight and going to the moon was imposible.
Um, you obviously can't read.
I have answered in that:
1. Obama is still detaining these people precisely because they are what I said they are.
2. Obama not only is detaining them, he is arguing they can be detained indefinitely (even after any judicial proceedings) because they are what I say the are.
3. I cited a case where one of the former prisoners took to the battlefield leading terrorists against the US.
4. I pointed out your question was stupid.
Like it or not, clown, those are all actual answers.
I'm asserting no such thing. All I've been saying is that before the Reagan era, SCOTUS confirmation used to be calmer, less political, less carefully scrutinised by the rest of the country, etc.
Because of the "activism" of the Warren court and, to a lesser extent, the Burger court, the American right started to pay closer attention to the confirmation process, talking more about the need to put the right people on the court, etc. That culminated in the Bork and Thomas confirmation processes, which were highly publicised and concerned nominees who were eminently to the liking of the right. The rest is history.
This is not me assigning blame. Both sides are to blame, which is exactly why it is so hard to put this genie back in the bottle. (Assuming one would want that.)
My only point was that this high profile confirmation process is the logical result of both parties acknowledging the teachings of legal realism, which is something they started doing when Reagan was president.
The answer is self evident. What does that say about you?
Since I cannot possibly know what facts you relied on, the answer is not self-evident.
You don't "know" these facts because you're being willfully ignorant.
Alternatively,
Sotomayor's statement was reverse racism.
Um, this "letter" is by no means "excellent" in the fact that these Republican Senators assume no such thing.
Other than that, it is a fantastic letter.
Obama has released some detainees over the last few weeks, which suggests that they are not "illegal enemy combatants."The administration is obviously referring to some subset of the detainees, not the whole Gitmo population, since negotiations for repatriation of some of the detainees are ongoing.Actions of someone no longer at Gitmo are irrelevant to the issue of the current population at Gitmo. I now understand from the totality of your posts the level of your factual understanding. I withdraw the question.
I would argue that the modern left disagrees with this strongly as they look for certain outcomes. Which is why they evoke silly "empathy" standards and talk about "emanations from penumbras" and "At the heart of liberty is the right to define one's own concept of existence, of meaning" and such.
Hysterical.
So that letter has all sorts of "evidence" for the assertion that "Republican senators assume] that while this Hispanic woman has an identity, the average white Republican senator does not" right?
Right?
Um, and then what?
The administration is obviously referring to some subset of the detainees, not the whole Gitmo population,
Hilarious. Which subset? What %? You do understand only 250 people are being detained there, right?
Please, I'm done responding to your 5th grade "logic"
Actions of someone no longer at Gitmo are irrelevant to the issue of the current population at Gitmo
The actions of a former prisoner clearly demonstrate the type of person being detained.
Laugh out loud funny.
Here is your "logic" in a nutshell:
Some detainees have been released, therefore I get to wave my hands and say Gitmo doesn't house illegal enemy combatants.
Or something.
I am going to make a big guess that martinned has never designed a bridge. Certainly a bridge will stand or fall, but the question is how long will it stand?
Judgement comes in, fitting imperfect materials into an imperfect world. You can drill a hole to see what materials a foundation will be built in, but you never really know what is there. The bridge can be designed for a record flood, but something bigger might come along as it did in Cedar Rapids last year.
In designing a project, the designer is writing a contract for the construction project, and has to anticipate how the contractor might screw it up. But the contract cannot be so tight that no contractor will build it on those terms. There is judgement involved through out the process.
Then, pray-tell, what are they? Why is Obama detaining them?
I am The Modern Left(tm). And now that Joe the Plumber has learned of my existence, he will become a part of the Borg... um, the Modern Left(tm).
Right?
Should be pretty easy to demolish then. Go. Have at it. Don't be shy.
Hey, Obama, why haven't you put Bush's genie back in the bottle yet?
The distinction can be made clear from the Safford Unified School District v. Redding. A judge who has sympathy for the girl in that case would decide in favor of the girl because the judge would feel bad about the girl being strip searched. Such a judge would be ignoring the law and going on their emotions.
A judge who who empathy for the girl in that case would be able to understand that strip searching a 13 year old girl can be traumatic, potentially more traumatic than what used to go on in Justice Bryer's gym locker room, and should be treated as such. They would then ask, with this in mind, whether the search was reasonable.
Taking sides with one of the parties because they are cute/pitiful is bad judging. Being able to understand all of the facts of the case, including the effect of the situation on each of the parties is good judging.
(*) I may work to keep from getting bored, but I'm sure as heck not commuting. People can use their own jet packs to meet me at my home office.
Cute logic, but it's akin to saying that particles can't be waves just because there's a logical contradiction there. Sorry, but the world is the way it is. People aren't objective, God is. We can't aspire to be God, and if we did have that aspiration, it wouldn't get us any closer.
Now, let's start with recognizing that objectivity does not exist and ask useful questions like "what's the best we can do?". It's the same strategy Adam Smith followed in The Wealth of Nations: not "what would the economy look like if people were perfect?", but "given people the way they are, what's the best economy we can expect?".
Guilty. Can I hitch a ride on your jet pack?
Now, let's start with recognizing that objectivity does not exist and ask useful questions like "what's the best we can do?". It's the same strategy Adam Smith followed in The Wealth of Nations: not "what would the economy look like if people were perfect?", but "given people the way they are, what's the best economy we can expect?"
I think that's the best summation I've heard of it. As I pointed out above, judges aren't perfect (in fact, there are some very bad judges, although the vast majority I have met and worked with are very, very good). But since they aren't, we have a system of rules and appellate courts to handle mistakes. Then you get into the bigger issue of "truth" vs. finality (how should the rules and appellate procedures be designed to maximize correct outcomes while, at the same time, providing timely resolution of issues to litigants), but that's a whole 'nother ball of yarn.
I don't know- there are sometimes results are glaringly right or wrong (like the judge who decided to hear a COA barred by the SOL because it sounded so unfair), but there are also the close calls, and even the more metaphysical areas. I think my favorite subject back in the day was Conflict/Choice of Laws, because it introduced both the most complex headaches in terms of what the right decision was (and how you could even come up with the right decision, not to mention the problem of endless regress), but it also illustrated that judges are human. Whatever the test (comparative impairment, modified brainerd, guest statutes etc.) - when in doubt, apply the law of the forum, because that's the law the judge was familiar with. :)
Is that an objective statement? If so, objectivity does exist. If not, I have little reason to recognize it as a starting point (unless I'm getting something out of it--perhaps a jet pack).
"what's the best we can do?"
How you can seek "the best we can do" without reference to an objective standard?
Hysterical.
Yes, we should all be in the business of "demolishing" silly accusations that have no basis in fact!
What is most comical about this is you posted an excerpt from a letter, which contains no evidence, then said this:
And you still don't get it.
Too rich.
I'm reminded of this old aphorism:* * *"Justice" that is blind is not justice. Call it what you will, anything else, but it is not justice to pretend not to see.
We may, in our wisdom or foolishness (or self-centredness), choose to put limits on what justice may take notice of. But there's nothing inherent in justice that requires it to take no notice of the world.In many cases this is the only realm under which the poor and powerless exact notice. And you begrudge them that? Would you prefer that they simply be ignored and dismissed (if not worse)?Seems that "justice" isn't the only thing blind around here. They already do that.
Cheers,
Tozhe, tovarich. You might glean something from the comment policy too, should you care to read it.
Cheers,
I think you should continue to be this silly.
Meanwhile,
Remember, 'accountability' is something silly people like you only shout at elected Republicans.
Cheers,
7.15.2009 3:05pm
Yes, as imitation is the sincerest form of flattery.
Cheers,
Just a little more here, martinned. Why are you assigning blame to a process that we're seemingly both acknowledging as legitimate and SOP?
If you do wish to assign "blame", shouldn't that blame be assigned only to those who created the first departure, that necessitated the second departure/restoration we're now engaged in, legitimately?
Don't be confused by internet snark and political manueverings in the perpetual political campaign. This is all business as usual. But if you're looking to assign blame, I'd suggest blaming those who initiated the blameful event.
I'm not put off by this Congressional action any more than anything else the congresscritters engage in. You seem to be.
"If men were angels, no government would be necessary."
We debate it among ourselves, try to identify the "externalities" (if you will), and try to reach a consensus about the right goals. Sorry if that sounds too existentialist, but we have no more option here than mathematicians do when faced with Godel's theorem or physicists in the absence of hidden variables.
This lady is, in all likelihood, just not as intelligent as her educational accomplishments and current job position would otherwise indicate.
What P value do you give that? < .05? It's interesting that you can make this assertion absent any supporting evidence (and contrary to the known facts concerning her accomplishments). Of course, your statement is perhaps more probative evidence of your own abilities.
My supporting evidence is what I've heard come out of her mouth since Monday, without the benefit of PR hacks' filters.
As a conservative, I hope she is confirmed. She will be like the justice she replaces, a sure fire liberal vote but a non entity.
We debate it among ourselves, try to identify the "externalities" (if you will), and try to reach a consensus about the right goals.
Yes, men are imperfect, but they only regarded as such when measured against the standard of angels. As for judges in particular: "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them." The emphasis on strict rules and duty is much closer to the position of Franck than Seidman.
Speaking of Seidman:
It means that every official act that a justice takes deepens the corrosive cognitive dissonance between what she pretends to do and what she actually does. This kind of deep hypocrisy imposes psychic costs that, at some point, are bound to have an effect on decision-making.
Where is the evidence of that effect? And what will be the cost to our jurisprudence of lowering our standards in the name of stamping out the modern sin of hypocrisy?
Anyone who knows anything about law knows that the official version is a lie, but many Americans don't know anything about law. To them, the official version sounds plausible. Reinforcing that version has a terrible effect on the possibility of serious public deliberation about constitutional law.
See here on the virtue and necessity of lies. What precisely is the "serious public deliberation" about constitutional law that such supposed lies prevent?
The Republicans' culpability? I deny it completely. I'm not a lawyer or law professor. I'm just an average, ignorant American with only a B.S. degree in mathematics, but it's clear to me nobody put her in that position. She was there in the first place. Republicans just pointed that out. Did they do something wrong? Absolutely not.
"Either Judge Sotomayor had to misrepresent what she knows judges (all judges, conservative and liberal) do in hard cases, or she had to risk defeat. I'm willing to concede that this is not an easy choice, but I nonetheless think that she made a serious mistake."
If the choice is between lying and telling the truth, any judge who would choose the former is not worthy to be a judge. And any lawyer who would defend that choice should not be a lawyer.
Sheesh. Is Seidman really so devoid of basic honesty? Has he no conscience? I hope he's an exception among lawyers and law professors.
I see my estimate of Seidman in my previous post was wrong. I apologize to him and all who read my previous post.
Ciao,
Of course, that's assuming that "society's" racism is white people discriminating against non-whites. But in fact, there is an enormous amount of racism by blacks against whites. Take a look at the hate crimes report the FBI puts out every year.
I'm glad that Obama needed to play the Hispanic vote; I shudder to think of him picking a leftist who had a brain. I must confess to being a bit confused why he picked Sotomayor; there must be some smart Hispanic leftist judges somewhere on the bench.
I recall reading not so long ago how some in the Chicago Law school (I do not know the correct name) set out to shape the opionions of the SCOTUS. They did this by loading law review journals with a specific message. They did this because the Justices opinions appeared to rely on Law Review articles.
I wonder how much of the Second Amendment not applying to the states originated out of a law review article.
How many conservative justices might lean to states rights and away from the blanket coverage of the second amendment.
Cheers,
Cheers,
I agree with this statement, but I'm not sure how this helps your position. This provides a standard which is the very opposite of objectivity. It's based on the prior decisions of (fallible) human beings doing the best they can, not something handed down from Heaven.
Sotomayor is saying that if the Second Amendment right were fundamental, the Supreme Court would have said so.
Recall that Scalia did not declare the Second Amendment right to be fundamental in Heller. This was particularly frustrating because he criticized the majority's gutlessness in not declaring homosex a fundamental right in Lawrence v. Texas. For Sotomayor to declare the Second Amendment right to be fundamental, sua sponte, would have been way above her pay grade.
My sympathies are with Seidman. I think she could have told the truth, and been confirmed. I suppose the response is: why take the chance.
As to empathy I think
I am intrigued by Graham's remarks re her temperament on the bench. I understand Scalia is also difficult.
I gather Sotomayor has been effective at forging consensus on the Circuit Court. How will she do at wooing Kennedy?
I haven't seen anyone tackling this question.
As to empathy I think Kleiman articulates it best
link http://www.samefacts.com
/archives/law_notes_/2009/05/
judging_and_empathy.php
This is correct. And if she had responded that the Second Amendment has not yet been found to be a fundamental right, and that she was merely following existing 19th century precedent on this, i would not have been so unimpressed. At a minimum, the Maloney decision should have recognized that the precedents that it follows seem to be grossly out of date, as the Heller decision seems to indicate.
Her oddly simple equating of "fundamental" and incorporation seems almost like it was intended to hide something--or she isn't too bright.
Huh? That does not make sense. I don't think I could have been much clearer than "this is not me assigning blame".
As for your comments in themselves: while the current process is both legitimate and SOP, it is hardly ideal. In a perfect world, the senators would ask questions that are actually relevant to the position judge Sotomayor has been nominated for. Also, in a perfect world, presidents from neither party would want to risk being perceived as nominating judges/justices for political reasons.
(For the record, and for everyone's illumination, the members of the Dutch supreme court are appointed as follows: The court makes a list of six candidates, parliament picks three of them for its official recommendation to the crown, and the crown appoints one of those three. In practice, the top candidate on the court's list is also the top candidate on parliament's list, which is usually the person who is actually appointed. Then again, the Dutch supreme court has many more members than its US counterpart, while its power is much more modest.)
I understood her to say "fundamental" as used by her and other judges is a term of art that means a right has been incorporated.
I see her playing a very defensive game, "hiding"- in the sense that she will not be caught expressing an opinion on how she might approach any future case; but isn't that now the accepted practice for all successful Supreme Court nominees?
Isn't it dangerous to suggest that someone with such a university, law school, and judicial track record "isn't too bright?" Like those who claimed Obama wasn't very bright and couldn't talk without his teleprompter. Obama has surely shown that he can talk at length about almost everything.
If it is all just coercion and force, then the that works both ways.
I understand that an Army Major asked for clarification of an order. For him to go to Afghanistan, he must be sure that the order sending him is legal, and for him, that means that the President is legally eligible to hold his position.
The Army, rather than respond to his suit, changed his orders. How afraid is President Obama to reveal his birth certificate?
The US may be in the same kind of constitutional crisis as we would have had in 1948 if Wallace, a Communist agent, had won the election.
I hope we can resolve this before my children are grown.
Your blame assignations, however (wrongly, imo, if you're about the business of assigning blame, as I'm not, but you seem to be) balanced you're painstakingly fabricating them to be, are still blame assignations.
The process may not meet your "ideal", but it's the process, and nothing is gonna meet your or my notion of ideal. That's politics, dude. It's the way it works. If we were amenable to your version of ideal, we'd elect you czar, and that would be that. If we're amenable to mine, well, there'd be some minor changes in government, but really, I'm just a kindly, lovable guy, senator (and I eat czars for breakfast!) ;-)
As I scan this, and in whatever strange manner the congresscritters are going about it, the process is asking the proper questions, imo. They're seeking to know the character of SoSo's judicial judgment and quality and character of her professional practice, which is exactly what I want to know, and it better not be acceptable for it to fall outside what I've outlined above, as established in every other profession I'm aware of, outside Seidman's Canonical Professional Church of Penumbras and Emanations, or the Wall Street traders who recently gave AAA ratings to bonds worth no more than the toilet paper they were printed on. We don't need relativism, and judges deciding that black letter SoL's should be rejected, if they impact one woman somehow, as an SC near-majority seems to think. Negative on that one, good buddy. Sorry.
Again, you seem to be disparaging this all as engaging in a political process, while at the saem time acknowledging the legitimacy of that political process which they're engaging in. Huh? You better resolve your own internal contradictions here, man.
It's like you're struggling to achieve something other than a coherent and recognizable judicial process, unacceptably utopian and unbounded, while also struggling to achieve an unachievably-utopian political process. The 2 ain't jiving, to me.
I'll believe that standard is being honored when the children of rich, privileged, connected, white parents get tagged for underage alcohol consumption, marijuana possession and vehicle violations as readily as children of poor, disadvantaged, unconnected nonwhite parents are tagged for identical conduct.
I'll believe people genuinely aspire to that standard when they decry (rather than silently celebrate) this obvious, immoral bias that infects our society.
No, I am not a birther nut. The Governor of Hawaii said he had seen the original. I was happy to put that to bed, based on his testimony.
I continue to be surprised that the Obama administration has not been more forthcoming, and surprised that the Army didn't bring the Major in and show him the public record documents that would answer his questions.
Court Martial? For what?
When one is being questioned by a member of the opposition party, one is wise to avoid accepting invitations to walk up the garden path. She would serve no purpose but the Republicans' by opining on the fundamentalness of the gun right. The question was asked and she answered it.
Which makes me wonder: The Republicans conceded that Sotomayor would get the votes. Why persist with pro forma questioning? Obviously, they hope she will make a blooper of some kind.
Not afraid at all; he posted a copy to his website.
Obama's bc is more detailed than mine. The one I got a few years ago does not even include my parents' names. Yet the registrar of vital statistics swears thatmine is sufficient for all legal purposes.
.
Indirectly, yes. The SCOTUS precedent cited as controlling / compelling the upholding of NY law was Presser v. Illinois, 116 U.S. 252 (1886): "... the states cannot, even laying the [second amendment] out of view, prohibit the people from keeping and bearing arms ..."
.
Bach v. Pataki, 408 F.3d 75 (2nd Cir 2005), cert. denied, 546 U.S. 1174 (2006): "Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the states."
.
While the 2nd amendment may operate only against the federal government, that determination, contrary Sotomayor's analysis in Maloney (drawing from Bach v. Pataki), does not conclusively establish or determine the constitutionality of a law that arguably affects the RKBA. In other words, the RKBA exists outside of the 2nd amendment - at least according to controlling SCOTUS precedent.
.
If a judge can't even READ the precedent, what business do they have behind the bench? And here, the Court is reading the case for the direct OPPOSITE of what it says.
If you sincerely believe that justice should not aspire to be objective, then you obviously object to the principle of stare decisis as well. Further, there is no reason for appellate review, statutes, or just about any other formality of law.
If judges are just going to give in to the plaintiff who can present the best sob story to the court, then why bother to have a Supreme Court or any appellate courts?
Our society is founded on inter alia the idea that justice provides a predictable and reliable outcome. While there are areas where courts have room to make or expand law, much of law is well established.
Well, at least it was until the present administration showed up and taught us that bankruptcy laws shouldn't be honored, that mortgages are not to be enforced, and basic contract law should be thrown out the window.
ArthurKirkland:
Just because we aren't meeting a standard doesn't mean we shouldn't aspire towards that standard. Should a married couple agree to be faithful to one another, despite the fact that many marriages end with infidelity? A parent shouldn't aspire to have their kids succeed in sports because 99.9% of all kids never make it to the pros?
Aspirations are great. We should encourage judges, where they are wrong, to correct their errors.
And yes, I agree that there should be harsher enforcement of drug and alcohol laws against everyone. We've tried cracking down on suppliers, to little or no effect (capitalism at work), now lets try cracking down on consumers.
Come again? She could either tell the truth or lie and chose the latter. What's so hard about that?
"After all if objectivity and the supression of bias are impossible, that includes realism. It is under its own terms just an ideology for destroying the idea and ideal of objectivity."
Mark wrote
"Cute logic, but it's akin to saying that particles can't be waves just because there's a logical contradiction there. Sorry, but the world is the way it is. People aren't objective, God is. We can't aspire to be God, and if we did have that aspiration, it wouldn't get us any closer."
"Now, let's start with recognizing that objectivity does not exist and ask useful questions like "what's the best we can do?". It's the same strategy Adam Smith followed in The Wealth of Nations: not "what would the economy look like if people were perfect?", but "given people the way they are, what's the best economy we can expect?".
I am not saying that judges do not show bias. I am only saying it is reprehenceable.
Your statement about the particle wave nature of photons in not relivant. Yes they have qualities of both. That is not a contradiction. A contradiction would be to say it had and did not have the same qualities in the same respect.
The fact is that if objectivity was really imposible we would not be concious because conscousness would not have an evolutionary advantage. The existance of andvanced human civilization showes that it has such an advantage. It is not I who is rejecting the evidence of his senses in denying the posibility of objectivity.
The sentence you cite was immediately identified as dicta -- remarks said "by the way," inessential to the holding -- because the final sentence of the paragraph you excerpt states But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect. So that sentence you quote was a bit of thinking out loud, because the statutes the Court was reviewing did not implicate that issue.
AFAIK, Clayton, you're not valedictorian at high school, summa cum laude from Princeton, and editor of the Yale Law Journal. All we have to go on is your meanderings here ... which don't impress. I hardly think that you are in any position to 'qualify' that obviously racist sentiment above with the dismissive and patronizing "there must be some smart Hispanic leftist judges somewhere on the bench". Your opinion on "smart" is akin to Oprah's opinion on dynamic gauge theory. Perhaps you think that Justice Thomas --who when asked by a student about the rationale of the majority opinion of the premiere case of the prior term to which he'd signed on, dismissed the question saying that this was last term and he couldn't remember such stuff -- is a wise solon of jurisprudence. That your idea of "smart"?
Cheers,
This is OT, you know:Not at all. It's in the public record for those that aren't blinkered eedjits (a/k/a "Birthers").There is no constitutional prohibition against communists serving as president.I'm sorry for your children. Really. Now go away.
Cheers,
Cheers,
.
Discussion about the 2nd amendment and right to keep and bear arms in the Presser case is almost entirely dicta, because the Presser case is about a state law requiring a parade permit. Parade permit statutes do not implicate the 2nd amendment (or the 1st amendment). "We think it clear that [requirements to obtain parade permits] do not [prohibit keep and bear arms]."
.
But still, the Presser Court did in fact assert that states could NOT prohibit keep and bear arms - even if there was no such thing as the 2nd amendment.
.
The 2nd Circuit has dishonestly cherry-picked one point of dicta about the 2nd amendment and its relationship to the RKBA and government powers, from a case that is about the police power to regulate parades, and elevated it into the status of binding precedent that supports a state law outlawing the prohibition of possession of a weapon.
.
Presser flatly does NOT stand for the proposition stated by the 2nd Circuit in its Maloney decision. The 2nd Circuit (and Posner and Easterbrook in the 7th) are lying about the legal substance of the Presser case.
The Presser Court asserted that states cannot deprive the United States of their rightful resource [to maintain] the public security; states cannot disable the people from performing their duty to the general government.
This appears to relate to the supremacy of the Federal government over the states, not to the rights of individuals.
the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.
.
Whatever the reason, "the states cannot, even laying the [second amendment] out of view, prohibit the people from keeping and bearing arms" is directly opposite "the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the states."
.
I can't keep the Circuit Courts, or you, or any other observer from reading Presser as compelling the feds to respect a state law that prohibits keep and bear arms; but I can point out the fact that Presser is a parade permit case, and to encourage readers to check Presser for themselves, instead of trusting.
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