The other Judge Sotomayor thread

[TillyGalore]

Thanks, Rockymtn Devil, for the legal lessons. I appreciate the time you have taken to respond.

Me too, thank you for your thoughtful and informative responses.

BTW, how do you like your new job?

[Shammrog]

Ditto. Thanks rockymtndevil!

It seems that without the SC decision (whether legally correct or not), Title VII gives decision-makers leeway to perform essentially whatever racial engineering they want. Since, just about any racial decision (or non-racial decision which could result in a racial outcome) could be subject to a lawsuit.

[rockymtn devil]

Ditto. Thanks rockymtndevil!

It seems that without the SC decision (whether legally correct or not), Title VII gives decision-makers leeway to perform essentially whatever racial engineering they want. Since, just about any racial decision (or non-racial decision which could result in a racial outcome) could be subject to a lawsuit.

Sorry for the late response, I don't check CT at work (new job going well, Tilly, thanks for asking )

I'm not entirely certain what you mean by this, can you re-word?

I think the consequence of the recent opinion will be an increase in disparate impact occurrences because now it's more difficult for plaintiffs to sue under such circumstances (whether the claims are valid or not). That means that smart, bigoted employers can reach the results they want if they simply utilize biased means that are covered up as facially neutral (it remains to be seen to what extent disparate impact as a theory of discrimination can even survive this case).

The flip side to this--and this is not yet known either--is that it is possible that the Court lessened the standard for disparate treatment by creating a sort of hybrid DT/DI cause of action (as I noted previously, the white firefighters here probably had a better DI claim) that allows something less than evidence that the employer made the decision solely because of the race/gender of the plaintiff. This open question is why it'll be very interesting to see how this majority responds to an apparently weak Title VII action not brought by sympathetic white plaintiffs. I bet the NAACP is already looking for the perfect person to bring that suit.

[rockymtn devil]

An interesting--non-legal--column on the Ricci matter and, more specifically, Mr. Ricci.

http://www.slate.com/id/2222087/

The pertinent question here is a valid one: Does the anti-affirmative action movement want to make this man (with his litigious history) its poster child?

Stepping away from the legal fallacies of the opinion, this column has reinforced my view that this case was not about what is "right" (legally or morally or philosophically speaking) but rather about seizing an opportunity to materialize the myth that white men are the most persecuted group in this country (consider, for example, that this case did not address a novel legal concept or one that has a split among the circuit courts; thus, there was no need for SCOTUS to grant cert in the first place). With Mr. Ricci, those that advance this school of thought could finally point to someone and, when the Court reached its outcome, cheer about turning the affirmative action sword outward. On a purely anecdotal level, the Facebook status updates I saw in the wake of the opinion from white male friends/colleagues of mine (none of which, I'm confident in saying, have ever looked at or thought about any part of Title VII) are in line with this line of thinking. They saw it as win for them. While this might ultimately make the ruling much less threatening to civil rights as originally thought, it makes me even more uncomfortable. If my instinct is correct (and it is just instinct), then I can't help but think that something is really rotten in the State of Denmark. For all of the politically motivated talk of "judicial activism" that goes on this country, this is real judicial activism with the High Court disregarding the letter of the law and making a dispositive ruling on a matter that was never presented to a jury solely to reach a cathartic outcome for one group of Americans. Scary.

I'll now step off my soapbox

[bjornolf]

And, even if she were "policy" making, that's what common law judges do. They flesh out poorly written legislation (pardon me, ambiguous legislation) and, in a common law system, appellate opinions become addendum to codified policy. You will rarely, if ever, find a judge who is quite literally creating law from thin air on the bench. The "liberal activist judge" is a myth. The bogeyman, so to speak. Instead, common law opinions are almost always grounded in an interpretation of vague statutory language. As someone with a background in policy (both development and advocacy) I can attest to legislators purposefully writing vague law to avoid answering the tough questions. This serves two purposes. First, it means they can't be blamed if the public disagrees. Second, it allows them to grandstand on television about "activist judges" who, of course, only had to flesh out the legislation because the politicians refused to do so.

But it does happen. Even by the SCOTUS. I'm not trying to get into the argument of whether abortion is good or bad, or whether roe v. wade effected the country in a positive or negative way. However, I was talking to a friend of mine a couple years ago who graduated from Duke law about a decade ago, and he was telling me about a study that a Harvard law professor did many years ago. He changed the names and language of roe v. wade just enough that you couldn't tell it was roe v. wade and presented it to his law class and had them evaluate it. Every single member of the class, regardless of race, religion, or gender, said that it was an awful decision. My friend, who SUPPORTS abortion rights by the way, says that that decision is the worst piece of trype he's ever read from an interpretation of the law standpoint. He says it was the judges deciding that something needed to be done, and making policy whole cloth without any support whatsoever. I'm no expert on this, but he knows a heck of a lot more than I do, as I'm sure the Harvard law professor who did the study does, and I just find that pretty interesting. The SCOTUS decision that has possibly had the greatest societal impact in the last 50 years is a load of BS, according to him. So, it can be done.

[rockymtn devil]

But it does happen. Even by the SCOTUS. I'm not trying to get into the argument of whether abortion is good or bad, or whether roe v. wade effected the country in a positive or negative way. However, I was talking to a friend of mine a couple years ago who graduated from Duke law about a decade ago, and he was telling me about a study that a Harvard law professor did many years ago. He changed the names and language of roe v. wade just enough that you couldn't tell it was roe v. wade and presented it to his law class and had them evaluate it. Every single member of the class, regardless of race, religion, or gender, said that it was an awful decision. My friend, who SUPPORTS abortion rights by the way, says that that decision is the worst piece of trype he's ever read from an interpretation of the law standpoint. He says it was the judges deciding that something needed to be done, and making policy whole cloth without any support whatsoever. I'm no expert on this, but he knows a heck of a lot more than I do, as I'm sure the Harvard law professor who did the study does, and I just find that pretty interesting. The SCOTUS decision that has possibly had the greatest societal impact in the last 50 years is a load of BS, according to him. So, it can be done.

I would strongly disagree that Roe is created from thin air. It is well grounded in precedent and the philosophy of the due process clause of the 5th and 14th Amendments. The strongest argument that it is ungrounded requires a hardline approach against any implied fundamental rights. But, such an argument requires that we accept that voting rights, for example, which are not enumerated in the Constitution and only exist because of the same philosophical underpinnings supporting Roe, are created out of thin air too. Even Justices Scalia and Thomas don't take that approach.

The arguments against Roe are that it's an incorrect application of how we determine IFRs. But that's a far cry from saying it's just made up.

[knights68]

I did not want to post this in Tilly's thread on what she has in common with the SCOTUS nominee, but thought it could be a decent discussion.

In the other thread, a reference was made to a post in the DBR regarding Judge Sotomayor being a wonderful policy maker. Now, this post could've been made tongue-in-cheek but given that that criticism is the most used in the GOP Judicial-Obstruction playbook, I'm guessing there is some truth behind it.

So, to Shamm, what exactly did you mean? I would suggest that any belief that appellate judges do not make policy shows a fundamental misunderstanding of our judicial and legislative systems. It's that misunderstanding that colors much--if not all--of the criticisms by the right on this issue. But, before I go on, I want to provide an opportunity for those who hold that belief to better explain it so that I'm not rushing to judgment.

Obviously, let's keep it civil (although that shouldn't be an issue).

Perhaps we can also this thread for any discussion of the nomination outside of what Judge Sotomayor has in common with Tilly.

So I have a question as the "confirmation" (read: coronation) of Sotomator is going on.
With the current state of Congress (Dem majority and filibuster proof) and the Media still in the 'honeymoon' stage with Obama et al, why do they even bother with the confirmation process?
I know I know, there are rules.... processes to adhere to. So why take more than a day for this? We all know that this is a slam dunk and that Sotomayor will be confirmed and not a whig the Repubs can (or will) do to prevent it.

Please tell me, oh scholarly ones, legal eagles (and the less scholarly and legal blind eagles) I ask why bother with this for more than a day?
Is there a specific time frame in the processes that there must be for a SCOTUS nominee to be in front of the congressional board to field questions that are, for the most part, laughable. How much money does it cost the taxpayers for this sideshow?
Why not just do a day of questions and then go out for ice cream? lol

The world would be such a better place if ice cream were more involved! And this coming from a dairy intolerant person, a "lactard")

[rockymtn devil]

So I have a question as the "confirmation" (read: coronation) of Sotomator is going on.
With the current state of Congress (Dem majority and filibuster proof) and the Media still in the 'honeymoon' stage with Obama et al, why do they even bother with the confirmation process?
I know I know, there are rules.... processes to adhere to. So why take more than a day for this? We all know that this is a slam dunk and that Sotomayor will be confirmed and not a whig the Repubs can (or will) do to prevent it.

Please tell me, oh scholarly ones, legal eagles (and the less scholarly and legal blind eagles) I ask why bother with this for more than a day?
Is there a specific time frame in the processes that there must be for a SCOTUS nominee to be in front of the congressional board to field questions that are, for the most part, laughable. How much money does it cost the taxpayers for this sideshow?
Why not just do a day of questions and then go out for ice cream? lol

The world would be such a better place if ice cream were more involved! And this coming from a dairy intolerant person, a "lactard")

Fundraising.

[rockymtn devil]

Great column by Eugene Robinson in yesterday's Washington Post:

http://www.washingtonpost.com/wp-dyn/co ... inionsbox1

His thesis is that the GOP is having such a tough time understanding/accepting Judge Sotomayor's doctrine (for lack of a better word) of viewing facts of a case as a Hispanic woman because they, incorrectly, believe that the white male judges that they revere are a "neutral identity" immune to looking through such a lens. Robinson points out that white males do have an identity and that men like Justices Scalia and Roberts view the facts through the lens of that identity, but the GOP doesn't see it that way because they think the lens is simply a cold, machine-like status-quo.

Worth a read for sure.

[Shammrog]

I think it is very true that no one is "neutral" in the sense of their gender/ethnic outlook. But I also think women, and to a greater degree minorities, are much more fervent about their identity politics than males, or whites.

[rockymtn devil]

I think that your statement may appear true on the surface because, at least in the political arena, it's our identity (white males) that comes through in just about every policy/law/judicial opinion--and it's been that way for almost all of our country's history. Because of this, we don't need to be "fervant" about our identity in order to get the world shaped our way. If you were a Hispanic noticing that 90+% of the movers and shakers in this country are not like you, you might feel the need to be more "fervant" about your identity in order to get into the political discussion. White men don't need that because we've owned the discussion for 200 years.

But, that doesn't mean that white male identity is any less prevalent in American society. It also certainly doesn't mean--and you haven't suggested this--that "white maleness" is the identity standard which all others should be judged by. The Republican Senators on the Judiciary Committee appear to believe that it is.

Consider why Frank Ricci is testifying. It's to draw out empathy for white males...except the GOP doesn't see it as empathy; they just see it as what's right.

[Shammrog]

I'm not saying that I don't understand the reason for it, or really even disagreeing with any of what you are saying. I am just making the observation.

However, I think that certain distinctions or "minority" statuses more readily give rise to a strong feeling of identity politics than others. On some level, just about any person is somehow a "minority" - its mainly a question of what attribute you are talking about.

[CathyCA]

I think it is very true that no one is "neutral" in the sense of their gender/ethnic outlook. But I also think women, and to a greater degree minorities, are much more fervent about their identity politics than males, or whites.

I think if white women or gay men or Hispanic men or Asian women or the Munduruku had ruled the world for the past umpteen centuries, you might feel differently.

The fact is, that if you're not a white male, you must work harder to prove yourself in this world. Title IX and Affirmative Action have opened doors for those who aren't white males, but once we step over the threshhold, we still must work harder than those white males to be taken seriously.

[Shammrog]

Why would I feel differently? Aren't we kind of saying the same thing??? ;)

I am not saying it is good/bad/or indifferent. Rather - just making the observation.

I think I am saying essentially (in different words) what you are saying - that the groups you mention do tend to be more strongly identified with their group, and act accordingly, then those outside the group.

[CathyCA]

I think I am saying essentially (in different words) what you are saying - that the groups you mention do tend to be more strongly identified with their group, and act accordingly, then those outside the group.

And many white males don't even realize that they are part of a group. They mistakenly believe that their norm should be everyone else's norm, just as many right-handed people believe that their norm should be everyone else's norm.

Are we indeed saying the same thing?

[Shammrog]

I think I am saying essentially (in different words) what you are saying - that the groups you mention do tend to be more strongly identified with their group, and act accordingly, then those outside the group.

And many white males don't even realize that they are part of a group. They mistakenly believe that their norm should be everyone else's norm, just as many right-handed people believe that their norm should be everyone else's norm.

Are we indeed saying the same thing?

Pretty much, yes.

But I do think that white male norms are less-distinctive than many others; for a number of different reasons. Part of it is that historical "white male norms" have been so prevalent in the societal power structure. And, part of it is regression to the mean - that is that some of these norms are so vanilla (get the pun? haha) that they are in fact norms for many people. White females, black males, etc. - there is a lot of overlap and only issues of contention get labelled as white male vs. (other).

[rockymtn devil]

And many white males don't even realize that they are part of a group. They mistakenly believe that their norm should be everyone else's norm, just as many right-handed people believe that their norm should be everyone else's norm.

That explains three-ring binders, which pretty much ruined my schooling from 5th grade on.