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HighDesertDJ
Trad climber
Arid-zona
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May 28, 2009 - 02:02pm PT
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"This is a question of semantics."
No actually it's a matter of political phraseology. It's dressing up an excuse to ignore the needs of the perpetually oppressed in the flag of Justice and Morality. It's sickening really.
Remember when Democrats were racist for opposing the first Hispanic to be nominated for Attorney General? Good times...good times.
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Norton
Social climber
the Wastelands
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Topic Author's Reply - May 28, 2009 - 02:05pm PT
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Fattrad, Judge Sotomayor strictly followed the law in her decision.
The law to be applied, as you well know from your extensive reading on this topic you are so well versed on, regards "disparate impact discrimination".
Forum conservatives should be applauding Sotomayor's STRICT interpretation of the written statute.
Now, just for the tiny chance that our forum conservatives have NOT READ the facts of the law and how it was UPHELD, read this.
Title VII protects prospective employees against both intentional discrimination (which Ricci, the plaintiff, maintains occurred here) and "disparate impact" discrimination, in which an employer uses an unjustifiable -- key word there -- basis for choosing employees that leads to its hiring too few people from groups that have historically faced illegal discrimination. You can't do either one, otherwise, you get sued.
After having gotten a result where African-Americans did relatively poorly enough on the exam that none would have been given the available slots, New Haven asked itself whether it could defend the test as being actually sufficiently predictive of competence on the job. If it doesn't mean that criterion, you can't use the test; if it does, you can. Disparate impact law is supposed to make sure that employers any hiring criteria with a disparate impact are in fact job-related, so that any resulting discrimination is not pretextual. New Haven didn't think it could prove that the test was OK -- so New Haven threw out the test.
Still sound fishy to you? I'll let Thompson tell the next two paragraphs of the story.
Race discrimination has locked minorities into poor neighborhoods with failing schools for generations: As a result, blacks, as a group, continue to perform less well on written exams than other races. Perhaps New Haven's black candidates could overcome these disadvantages by studying harder, like Frank Ricci did. But Ricci took extraordinary steps to ace the test—six months off work to prepare and $1,000 on tutoring. An equal-opportunity law that's premised on everyone taking such steps isn't likely to do much good in the real world of scarce time and money. And would encouraging the equivalent of intense cramming for the final really help employers select the best firefighter for the job?
Prohibiting tests that needlessly screen out underrepresented groups is a sensible way to ensure that employers have both qualified and integrated work forces. That's why Sotomayor and the 2nd Circuit rejected Ricci's claim. The timing of New Haven's decision is what makes it look so bad: It was a cruel bait-and-switch to reject the results after Ricci and others had studied for the exam and done well. But Ricci isn't attacking the timing of New Haven's decision; he's attacking the city for considering the racial impact of the exam. And that's exactly what disparate impact requires an employer to consider. Ricci's position threatens to burn down one of the nation's most important civil rights laws. Even in the improved racial climate of the Obama era, that should set off alarms.
In other words, one good reason that New Haven had to reject this test is that it was possible for someone like Ricci to "game" it with lots of expensive extra practice and tutoring -- and the luxury of enough time off to do both. The test was no longer going to be predictive of the real job performance of people like Ricci, who would not be able to "cram" for all of the job responsibilities he would face in real time as a firefighter. And if the test doesn't really identify better performance on the job, and it has a disparate impact, then it can't be used.
That's a pretty good rule. There's a pretty good chance that the Supreme Court is going to overturn it within the next month -- which will mean a lovely and blistering Ginsburg dissent, most likely -- but that was the law when Sotomayor made her decision.
Do you now understand that "THAT WAS THE LAW WHEN SHE MADE HER DECISION"?
She did EVERYTHING you conservatives WANT in a Judge, she STRICTLY UPHELD the WRITTEN law.
Do you understand now that there was no "judicial activism",
and that you are flat ass WRONG to infer from her STRICTLY
UPHOLDING THE WRITTEN LAW that she is, somehow, a "racist"?
You ought to be singing her praises, she is exactly what YOU
want in a Judge.
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bookworm
Social climber
Falls Church, VA
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May 28, 2009 - 02:07pm PT
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i'm willing to consider the context...just like i consider the context of the "torture" memos...and the meaning of the constitution, etc.
but i am curious why the context hasn't been shared already if it matters
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dirtbag
climber
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May 28, 2009 - 02:10pm PT
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Because she hates white people. She's an angry Puerto Rican lady who can't wait to stick it to whitey.
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apogee
climber
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May 28, 2009 - 02:10pm PT
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bookworm, you are probably right- discussing context is pretty pointless, because you (and others) are going to either misrepresent it, distort it, or disregard it in order to make your point.
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atchafalaya
climber
Babylon
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May 28, 2009 - 02:12pm PT
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BH, judicial experience isn't the only reason Harriett Myers was dissed. The 9 spots on the S. Ct. bench should be for the best and brightest our country has to offer. Granted, Sotomayor has judicial experience. But she is similar to Miers in that she was picked for reasons other than being the best choice for a S.Ct. justice. IMO, Obama blew this important decision.
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bookworm
Social climber
Falls Church, VA
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May 28, 2009 - 02:14pm PT
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but liberals never do that, right, apogee...what more can i do than give her the benefit of the doubt, which i did above...and why is my curiosity about the context so outrageous? it seems to me if the context would explain away her words that her supporters would already have the context all over the internet and all the msm channels...quite logical for me to conclude that the context isn't going to help her in this case...but i still won't call her a racist...but i'm still open-minded
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apogee
climber
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May 28, 2009 - 02:17pm PT
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"but i'm still open-minded"
Ummmmm.....yeah.
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Fat Dad
Trad climber
Los Angeles, CA
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May 28, 2009 - 02:22pm PT
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"BH, judicial experience isn't the only reason Harriett Myers was dissed. The 9 spots on the S. Ct. bench should be for the best and brightest our country has to offer. Granted, Sotomayor has judicial experience. But she is similar to Miers in that she was picked for reasons other than being the best choice for a S.Ct. justice. IMO, Obama blew this important decision."
She's was a Bush appointee to the federal bench. Has 17 yrs. experience on it, and has received praise from her colleagues for her smarts and decision making. She was editor of law review at Yale. She won the Pyne Prize at Princeton, the highest award given to undergrads.
How is this woman not qualified? If anything, she's better qualified than Alito, Thomas, may even Roberts. It seems that the naysayers are questioning the validity of her selection based solely upon the fact that she's a woman and a Latina.
Am I missing something?
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Norton
Social climber
the Wastelands
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Topic Author's Reply - May 28, 2009 - 02:22pm PT
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When we elect a President we give him the power to nominate whoever the hell he wants for the Court. We expect him to nominate someone who is more likely to agree with his own legal outlook,
in addition to expecting him to nominate someone with excellent legal background.
All Presidents throughout our history have followed the above.
Carefully culling a consensus opinion based on legal background only has never in our 200 year history been the prime reason for
any President's selection.
It was not that long ago that Republican President GW Bush nominated Clarence Thomas, and spoke movingly about Thomas's
"empathy" as a strong reason for his nomination.
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GDavis
Trad climber
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May 28, 2009 - 02:26pm PT
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She's not racist - thats just silly.
She DID get into office because of her race/sex. If you don't believe that you are a little delusional. Just like the colleges that I had to apply for have to accept a minimum number of each minority, friends of mine were turned away while minorities with lower testing scores were allowed in, with a full ride scholarship. Fair? Nope. But the worlds not fair, and its not really a huge deal. Just pushes us to work harder I guess.
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Norton
Social climber
the Wastelands
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Topic Author's Reply - May 28, 2009 - 02:36pm PT
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FATTRAD,
Go back and read what I post again.
You are having trouble with this for some reason.
What part of STRICTLY UPHOLDING WRITTEN LAW don't you agree with?
Her vote was one of three other Justices that all agreed the written law should be UPHELD.
Do you get it now?
Praise her, support her, Fattrad, she STRICTLY UPHELD THE LAW.
That's what you conservatives scream for, RIGHT ?
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Fat Dad
Trad climber
Los Angeles, CA
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May 28, 2009 - 02:38pm PT
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GDavis,
I tend to agree with you. One issue that many fail to consider, however, as Largo hinted at, is that lots of hiring decisions made prior to the establishment of affirmative action were made on the candidate being white. As evidence of that, many of the posts on this thread seem to question her qualifications simply because she's not white. I don't think those persons would agree with my assessment, but they haven't provided any info in my mind to prompt me to change that view.
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apogee
climber
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May 28, 2009 - 02:41pm PT
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You know, I honestly don't have much of a problem with gender or race being part of the selection criteria for a particular job or position. There are certainly positions or functions where gender or race are as important as one's educational &/or professional background and experience. Of course, the rub is in quantifying these elements in relation to each other, and how important they are in order to do a particular job.
In the case of a SC justice, I do think that there is value in a female perspective, and the perspective of other cultures- you can really only obtain that perspective by having a person of that gender or race. Ideally, this wouldn't be the case, but it is- and none of the old, white males on the scotus can compensate for that.
I think it is pretty disrespectful to simply say that Sotomayor was selected because of her race and gender- it obviously was a consideration in the process (I would do the same), but she clearly has the educational and professional experience to back it up (as contrasted with H Miers).
The whole question of whether she is racist is simply a GOP political tactic.
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atchafalaya
climber
Babylon
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May 28, 2009 - 02:43pm PT
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FatDad, you missed the point of my post, completely. I never said she wasn't qualified. I think she is well qualified. But BEST choice? I don't think so, there are lots of great judges with impressive educational backgrounds. Law review background is not a strong selling point for me.
If it was your choice, would you have picked her over all the other well qualified choices? Why?
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Fat Dad
Trad climber
Los Angeles, CA
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May 28, 2009 - 02:51pm PT
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atch,
I confess I'm not as familiar with some of the other possible picks. I recall Kim Wardlaw out here in CA, but don't have a strong memory of the others.
To be honest, this is one of those delicate tasks where it's nice to have an established record of published opinions, though I don't believe that is an absolute prerquisite. It just provides a better view of how that person might rule on similar issues. Alito (or "Scalito" as he was called prior to confirmation) is a good example of that. A predictable conservative, even if it means disregarding prior precedent.
I don't believe a strong academic record is necessarily the best factor for quality. You basically want a fair, impartial jurist who is going apply the law but also "get" what the underlying case is about. Brown v. Board of Education likely wouldn't have been decided the way it was there were just automatons like Bork on the bench. They would have pointed to Plessy v. Ferguson as precedent and left it at that. I would argue that Brown was a good decision, but strict constructionalists or a justice who has no empathy for the underlying circumstances might disagree or not care.
Given that, how do you decide who's best qualified?
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Norton
Social climber
the Wastelands
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Topic Author's Reply - May 28, 2009 - 02:52pm PT
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Are you suggesting that only legally well qualified white men should be appointed to the court because to appoint a non white male who is equally well qualified would be reverse discrimination?
So in your view, Obama should not have selected a minority female just so he would not be criticized for doing exactly that?
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atchafalaya
climber
Babylon
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May 28, 2009 - 02:59pm PT
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"Are you suggesting that only legally well qualified white men should be appointed to the court because to appoint a non white male who is equally well qualified would be reverse discrimination?"
Norton, I am not suggesting anything. Read my post. I stated my thoughts. I think this is one of the biggest and most important decisions a president makes, and I want/hope the spot goes to the best person, white, black, latino, male, female...
I think race and gender should be entirely left out of the equation, as I do not support discrimination in any form.
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JEleazarian
Trad climber
Fresno CA
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May 28, 2009 - 03:11pm PT
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The best quote I can think of about the irrelevance of a law review background comes from Learned Hand, said in declining membership to the Harvard Law Review: "I did not attend law school to edit a magazine." This from probably THE outstanding 20th Century American jurist.
That said, I don't think you can measure objectively who is the best and brightest. More importantly to me, I don't want to appear before, or have my case decided by, a judge who lacks judicial temperment. I know several extremely bright, articulate judges who think too highly of themselves. This interferes with their ability to judge thoughtfully, fairly or legally.
Even though I'm a conservative Republican, I find Judge Sotomayor well-qualified for the position. So was Robert Bork. The fact that the libs acted despicably in the Bork nomination will not cause me to stoop to their tactics or lies, and I hope the conservative members of the Senate rise above the actions of their opposition.
Judge Sotomayor desrves to be confirmed. Her decisions on racial preference have enough jurisprudential support to give them intellectual honesty (in contrast, say, to the Rose Bird California Supreme Court's decisions on a variety of cases). The fact that she could have ruled the other way with the same intellectual honestly does not disqualify her, unless we descend to the level of the Borkers.
John
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Norton
Social climber
the Wastelands
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Topic Author's Reply - May 28, 2009 - 03:17pm PT
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atcha, thanks for your reply and I fully agree.
However, we both know that in the US legal system one can find many, many, well qualified educationally and judicially experienced candidates for nomination to the SC.
The present court has disproportionately represented by white males, with only Thomas the true black racial minority and Ginsburg the only female, albeit white.
Diversity is a good thing no doubt you would agree, as it brings
diverse opinion and experience to the bench.
So, given the above, what is wrong with specifically, intentionally, selecting an equally well qualified minority?
Previous Presidents, given the past prejudices so apparent in our history, could not appoint equally qualified minorities because they knew full well congress would never have approved the nominations.
Now, the more tolerant mood of the country, as evidenced by electing a black President, is suggesting this is as good a time as any to intentionally appoint an equally qualified person who happens to be a minority.
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