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Thread: W.H. to Sotomayor critics: Be 'careful'

  1. #191
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    Re: W.H. to Sotomayor critics: Be 'careful'

    Quote Originally Posted by WillRockwell View Post
    It is easy to take issue with a quote that you misrepresent. Tell me now what issue you have with Sotomayer's actual statement.
    http://www.nytimes.com/2009/05/15/us...l?pagewanted=5
    There are many issues to be had. I am going to focus on one--her rationalization of judicial activism.

    Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
    The broad brush statement is an easy one to make because it lacks specificity. Because it is easy, it is also a fairly feckless statement as well. I for one would be greatly interested in knowing in which cases she believes Justices Holmes and Cardozo voted in favor of sex and race discrimination. I would be greatly interested in knowing in which opinions did Justices Holmes and Cardozo write that women were inferior to men, or that white men were above all others in any sphere. Note that it is not hard to find a Holmes opinion that might offend the modern psyche--Buck v Bell, the much-discussed "eugenics" case, is remarkable chiefly for his closing comment "three generations of imbeciles are enough."

    But Buck is also worthy for its illumination of Holmes' flavor of judicial reasoning--his concern is not some presumed universal moral "rightness", but merely the viability and observance of the law. Holmes specifically deferred to the prerogatives of the legislature in Buck: "In view of the general declarations of the Legislature and the specific findings of the Court obviously we cannot say as matter of law that the grounds do not exist, and if they exist they justify the result." He detailed at some lengths the procedural protections afforded the plaintiff in error to eliminate any contention that the plaintiff was denied due process. From an historical perspective, the question may be fairly asked: does Holmes' reasoning in Buck represent an endorsement of "negative eugenics" or of the primacy of legislatures in ordering society?

    Nowhere in Sotomayor's lecture is there even so much as an allusion to such a question. The summation of Holmes' judicial reasoning is contained in the single simple assertion that he voted on cases that affirmed sex discrimination. Such an assertion, unsupported by textual evidences, is mere glibness at best, but is in every instance sloppy and shallow logic, an offense made worse by failing to account for the anecdotal aphorism attributed to Holmes:
    There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, "Do justice, sir, do justice." Holmes stopped the carriage and reproved Hand: "That is not my job. It is my job to apply the law."
    We must be mindful that the standard of judicial review is not the achievement of some preordained notion or theory of "justice". The Supreme Court is not nor should ever be concerned with ethereal notions of moral right and moral wrong. The standard of judicial review for the Supreme Court of the United States is what was explicitly stated in Marbury v Madison two centuries ago: "It is emphatically the province and duty of the judicial department to say what the law is." Judicial review is no more and no less than this.

    Thus, while it may be arguably true that, on certain cases viewed from certain perspectives, Justice Oliver Wendell Holmes did render opinions that tolerated and even advanced a discriminatory legal framework, it may also be argued that, by so doing, he placed the burden of social justice and the equality of law exactly where it belongs--on the Congress and the legislatures of the states. So long as a law conforms to the framework laid out by the Constitution and its several amendments, the duty of the Supreme Court is to uphold that law, even if it achieves the basest and most repugnant of ends. If a law is unjust, it falls to the legislative branch of government to repair the injustice; no court contains the competence to effect such repair within its rulings.

    Judge Sotomayor would argue--and did argue--to the contrary, and in arguing to the contrary offers up no more substance than the arrogant and rather self-serving assessment that she, being a "wise Latina woman" having lived a "rich life", is better positioned than others to grasp the nature of injustice, and to see what the fitting remedy should be. It is a petty, shallow, and withal silly framing of the judicial function: justice is what Judge Sotomayor deems it to be, and the proof that it is justice is that she declares it thus.

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    Re: W.H. to Sotomayor critics: Be 'careful'

    Quote Originally Posted by Mick
    The test for me is simple; would this POV be acceptable if it were posited by a white man who felt his ethnicity and gender should influence his decisions?
    Apparently it was acceptable when it was a white conservative male who said during his Senate Judiciary Committee Hearing Nomination to the Supreme Court that it would influence him.


    "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."--Samuel Alito


    But then again he is a conservative, so it's OK...
    “We just simply don’t know how to govern” - Rep. Steve Womack (R-AR) a member of the House Budget Committee

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    Re: W.H. to Sotomayor critics: Be 'careful'

    Quote Originally Posted by MrVicchio View Post
    You mean like her racist remarks are now off limits?
    What racist remarks? (Preferably, you'll quote the entire passage, not just a snippet that by itself gives what she might have said a different meaning.)

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    Re: W.H. to Sotomayor critics: Be 'careful'

    Quote Originally Posted by WillRockwell View Post
    Sotomayer's quote about Latina women and white men was taken out of context. Here is the context:



    It is easy to take issue with a quote that you misrepresent. Tell me now what issue you have with Sotomayer's actual statement.
    http://www.nytimes.com/2009/05/15/us...l?pagewanted=5
    She goes from there to here:

    Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
    The bolded is absolutely inexcusable and while it may occasionally happen the presence of other judges on the court would surely keep it from mucking up the words. But she states it as a blase matter of course. She IS NOT supposed to "taker her good experiences..." and wear them with her robe into the court room. She SHOULD NOT accept that her Latina heritage and gender will cause her to judge differently. Accepting any such thing goes against everything it means to be a good judge.

    She goes on to say:

    I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.
    And I say she is wrong .Heritage??? Please. She is absolutely supposed to deny heritage, skin color, etc. She is not supposed to look at a man and have sympathies, prejudices, etc based on heritage, skin color, etc. IT IS ENTIRELY INAPPROPRIATE ALWAYS. The fact that she willingly accepts that she will do this, -offer sympathies based on heritage,- is horrifyingly unacceptable.

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    Re: W.H. to Sotomayor critics: Be 'careful'

    Quote Originally Posted by MrVicchio View Post
    Translation?
    Don't you even think of raising any objections or else.
    You know what torques me about this remark? It's that during the Bush years, every time liberals raised any legitimate concerns about some Bush judicial nominees who were minorities and/or women, they were called racist and/or sexist. Many conservatives tried to intimidate critics into silence with these remarks. Now that the shoe is on the other foot, they are whining like stuck pigs.

    Ironically, I'm not hearing the racist/sexist slurs being hurled at Sotomayer's critics; instead, I've heard some of her critics on other forums call HER a racist and sexist!

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    Re: W.H. to Sotomayor critics: Be 'careful'

    [QUOTE=Birdzeye;1058047649]You know what torques me about this remark? It's that during the Bush years, every time liberals raised any legitimate concerns about some Bush judicial nominees who were minorities and/or women, they were called racist and/or sexist./QUOTE]

    I do not remember this.
    Let's figure it out.

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    Re: W.H. to Sotomayor critics: Be 'careful'

    [quote=FlappyTheKinkajou;1058047655]
    Quote Originally Posted by Birdzeye View Post
    You know what torques me about this remark? It's that during the Bush years, every time liberals raised any legitimate concerns about some Bush judicial nominees who were minorities and/or women, they were called racist and/or sexist./QUOTE]

    I do not remember this.
    I certainly do.

    Here's one example that I got from a quick google search (Senator Leahy was accused of bigotry for opposing the confirmation of Miguel Estrada):

    CommonConservative.com: The Archive of Tom Adkins - the Modern Conservative 03/16/03
    Last edited by Birdzeye; 05-28-09 at 01:41 PM.

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    Re: W.H. to Sotomayor critics: Be 'careful'

    Quote Originally Posted by talloulou View Post

    The bolded is absolutely inexcusable and while it may occasionally happen the presence of other judges on the court would surely keep it from mucking up the words.
    You don't think it happens? Then how do you explain, as she also points out in her speech, that judges from different backgrounds do tend to rule differently?

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    Re: W.H. to Sotomayor critics: Be 'careful'

    Quote Originally Posted by Redress View Post
    You don't think it happens? Then how do you explain, as she also points out in her speech, that judges from different backgrounds do tend to rule differently?
    Of course they do - they have since the beginning of the supreme court -they are not robotic. Sotomayor is just being honest - which I think is quite refreshing!
    Good luck to her.

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    Re: W.H. to Sotomayor critics: Be 'careful'

    Quote Originally Posted by Redress View Post
    You don't think it happens? Then how do you explain, as she also points out in her speech, that judges from different backgrounds do tend to rule differently?
    I didn't say it never happens. I said it may occasionally happen. But it is not the desired goal. You don't go into judging happily accepting that your going to bring you're prejudices with you.

    There is a difference between acknowledging something might happen to effect levels of impartiality with different judges vs embracing that, bragging about it, and not giving a piss about flat out stating you don't mind not being impartial at all.

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