Discussion Topic |
|
This thread has been locked |
dirtbag
climber
|
|
|
Topic Author's Reply - Feb 25, 2016 - 12:29pm PT
|
Sandoval has just said he doesn't want to be considered. Who can blame him?
|
|
Jorroh
climber
|
|
|
Feb 25, 2016 - 12:48pm PT
|
"Unable to address his legal reasoning, they resort to innuendo to attack his character."
I'm not a lawyer, I'm not that interested in the details of the law...I'm too busy with lots of other priorities to try and learn about the law in any sort of detail.
To me the law is a black box and what I'm interested in is the outcomes that that black box produces. I think that is probably how all but a tiny percentage of Americans view the law.
Honestly, I could give a flying f*#k about the elegance of his legal reasoning or the pithiness of his written opinions. What I see is a guy who appeared to find legal justifications for his political preferences.
Justifications and preferences that have done tangible damage to democracy, and tilted the economic playing field, even more that it already is, in favor of the rich.
|
|
Craig Fry
Trad climber
So Cal.
|
|
|
Feb 25, 2016 - 07:30pm PT
|
relative of some of Craig's attacks on Scalia. I had no part in insinuating that it was some kind of "secret society"
But I ask
Was your father a conservative?
How about Blahblah, what was your father?
We know bluring and fatty were raised under right wing tyranny.
My father was a liberal, and wow, it turns out I'm a liberal too...
Scalia's father was THE founding member of the America Fascist Party.
These are facts, not some liberal smear campaign.
so wrong again John
|
|
zBrown
Ice climber
|
|
|
Feb 25, 2016 - 07:45pm PT
|
If Obama had any sense, he would nominate Wolfman Jack for the Supreme Court.
Wait a minute, you're anominating a dead nigra to the court?
-Bitch McConnel, court Jester
Yep!
-Barack H. Obama, Chief O' Kenya
Obama could then move "progressively" through Martin Luther King, H. Rap Brown, Huey P. Newton, Eldridge Cleaver, The Dread Malcom X unitl Bitch finally caves in and says
hmmmmmmmmmm ... the musical nigra doesn't seem that bad ... any live nigras available?
Anybody know is Bob Marley is still kicking?
|
|
JEleazarian
Trad climber
Fresno CA
|
|
|
Feb 25, 2016 - 10:48pm PT
|
To me the law is a black box and what I'm interested in is the outcomes that that black box produces. I think that is probably how all but a tiny percentage of Americans view the law. [emphasis supplied]
If that's really true, the country is in more trouble than we'd be in a Trump/Sanders election. If the population doesn't understand or care about what the words in a law mean, we've already arrived at a lawless tyranny, but I may be overreacting because I've spent most of my life in the legal business. I've dealt with courts populated by judges who were social engineers, using their position to make the world right in their own eyes.
One of the worst examples was a superior court judge here, whose brother was perhaps the best bankruptcy judge before whom I've appeared. The superior court judge was convinced that men got the shaft in divorce proceedings, and he was doing all who could to make sure that didn't happen in his court, the statutes be damned. I suppose if you viewed the world that way, you wanted a black box that produced his outcomes.
What if you didn't see the world his way? To whom could you turn for recourse? Appeals have limits; the factual determinations of lower courts can't be set aside unless they're clearly erroneous, which is a very deferential standard. Amendment to legislation wouldn't work, since he didn't care what the legislation said. Getting him removed from the bench would work, but good luck doing it. If the judge is a federal Article III judge, it's even harder. He or she can only be removed by impeachment.
Perhaps only if you've experienced that sort of judicial fiat will you be as aghast as I am with the "black box" approach to law. Our government is one of checks and balances for a very good reason. Without them, the people have no real protection from those who wish to rule them. If a judge is free to contradict the clear meaning of statutes and the Constitution, we have no protection at all.
John
|
|
zBrown
Ice climber
|
|
|
Feb 26, 2016 - 07:34am PT
|
The superior court judge was convinced that men got the shaft in divorce proceedings, and he was doing all who could to make sure that didn't happen in his court, the statutes be damned.
Amen brother.
I observed Judge A. in San Diego. He completely ignored the law and court decisions (happened to be the Grinius ruling). Even challeged that if attys didn't like it they could take an appeal.
|
|
blahblah
Gym climber
Boulder
|
|
|
Feb 26, 2016 - 07:35am PT
|
Craig, out of curiosity, I tried to find out a bit more about Scalia's father's alleged fascism. (Not that it's directly relevant to Scalia, but as I said, I agree it's interesting background.)
As far as I can, the allegations are a hoax, and may have derived from general anti-Italian sentiment of the era.
http://www.newsbusters.org/blogs/jack-coleman/2013/03/04/liberal-radio-host-mike-papantonio-smears-scalia-elder-fascist-leader
As to this post:
I'm not a lawyer, I'm not that interested in the details of the law...I'm too busy with lots of other priorities to try and learn about the law in any sort of detail.
To me the law is a black box and what I'm interested in is the outcomes that that black box produces. I think that is probably how all but a tiny percentage of Americans view the law.
Honestly, I could give a flying f*#k about the elegance of his legal reasoning or the pithiness of his written opinions. What I see is a guy who appeared to find legal justifications for his political preferences.
The poster may know more about law, at least constitutional law, than he thinks. There is not a lot of intellectual content to it, and the "justices" do just make the sh#t up. It's a little more complicated than that, but only a little. (There are technical doctrines of con law that a non-lawyer or even a lawyer who doesn't specialize in con law would know nothing about, but they don't drive the outcome of most socially interesting cases.)
The conservatives have a significant edge over the libs in that they are generally inclined to make up less sh#t (that is what is meant by "judicial restraint"), but they do it too when they really want to put the fix in on a particular case (see Bush v. Gore).
|
|
JEleazarian
Trad climber
Fresno CA
|
|
|
Feb 26, 2016 - 10:09am PT
|
The conservatives have a significant edge over the libs in that they are generally inclined to make up less sh#t (that is what is meant by "judicial restraint"), but they do it too when they really want to put the fix in on a particular case (see Bush v. Gore).
The key ruling in Bush v. Gore, namely that the Democrats controlling the counting of votes couldn't change the rules after the election, was a 7-2 decision, so it was more than just a conservative decision.
With that quibble, I agree with the premise above, but for a slightly different reason. I always wanted to be on the side that said that a writing means what it says. Whenever a lawyer has to argue that a key writing means something different from what its words normally mean, that lawyer has a losing argument. The Scalia approach started with the wording of the provision the court was required to construe. If he saw a plain meaning of the provision, that ended his inquiry. Only if the provision was logically susceptible to ambiguity did he see any need to interpret or construe it.
A good example of that reasoning is Dewsnup v. Timm, a bankruptcy case from the early 1990's. Under Section 506(a) of the Bankruptcy Code, the court must examine the value of a secured creditor's collateral. If the collateral value exceeds the debt, the Code says that in bankruptcy, we treat that creditor as fully secured, allowing that creditor to accrue post-bankruptcy interest, fees and charges in addition to what was owed when the debtor's case was filed. If the value of the collateral does not exceedthe amount of the debt, the creditor cannot accrue any interest, fees or charges after the filing of the petition, and make those post-petition accruals part of its claim.
The issue in Deswnup came down to the meaning of another subsection of the Code, Section 506(d). That subsection reads:
(d) To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, unless—
(1) such claim was disallowed only under section 502(b)(5) or 502(e) of this title; or
(2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under section 501 of this title.
The creditor's collateral value was zero. The debtor therefore argued that he wiped out the creditor's lien in his Chapter 7 bankrtupcy. The majority of the SCOTUS disagreed, reasoning [sic] that it had always been the law before the enactment of the current bankruptcy code that liens survived bankrtupcy. There was nothing in the language of the current law saying that it intended to change prior law. Accepting the debtor's argument meant that the current law changed prior law.
Scalia dissented, arguing that the plain language of Section 506(d) said the lien is void if it is not an allowed secured claim, and Section 506(a) said that the lien secured an "allowed secured claim" only to the extent there was collateral value. Thus, giving the language its plain meaning, it didn't matter what prior law said. The language of the current law was clear, and the (consumer) debtor should have been able to get rid of the (bank) creditor's lien in his bankruptcy.
One normally would not expect a conservative judge to say that a debtor could evade his contractual responsibilities, particularly when the Bank gave an argument that its contract rights should prevail. Scalia did not first decide who should win. Instead, he analyzed who the statute said should win, and that determined his answer. That showed a judicial humility lacking in the less conservative side, because the latter tends to bend, if not break, the meaning of the statute's or Constitution's language to achieve the result they want. Put another way, they don't let the clear language of a statute stop them from doing what they want.
To me, the court's fidelity to the provision's language determines whether a court is or is not "activist." An activist court effectively re-writes the provision to produce its desired outcome. A non-activist court interprets the provision as written, and uses that interpretation to determine the result.
John
|
|
Fat Dad
Trad climber
Los Angeles, CA
|
|
|
Feb 26, 2016 - 11:02am PT
|
The conservatives have a significant edge over the libs in that they are generally inclined to make up less sh#t (that is what is meant by "judicial restraint"), but they do it too when they really want to put the fix in on a particular case (see Bush v. Gore). Absolute bullsh#t. Judicial restraint is a fiction of the right and apparently one that you have bought into. If you want an example of judicial activism by the current court, and Scalia, please review Heller v. District of Columbia. Moreover, the concept of judicial restraint (and stare decisis for that matter) presumes an infallibility on behalf of the earlier court crafting the decision.
On the first day of law school, we reviewed a case about whether a spouse had a right to bring a claim against her spouse for beating her. The majority opinion was that, she should not since, in the majority's opinion, it would have a detrimental effect on the marital relation. No effing joke. However, as the dissent corrently pointed out, if one spouse is beating the other, then clearly the marital relation already has significant problems and may not be worth preserving.
I thought that the post you highlighted in your response was pretty dead on. I believe that many of Scalia's opinions are so disingenuous that it is apparent even to someone not in the legal profession that he is just looking for a preordained conclusion even where the facts do not support it. Scalia was an emabarrassment to the concept of impartiality by the Court.
|
|
blahblah
Gym climber
Boulder
|
|
|
Feb 26, 2016 - 01:22pm PT
|
Now Fat Dad I was going to compliment JE on posting a very clear example of judicial restraint and how, properly exercised, it may lead to decisions that are against what we would expect to be the proclivities of the judge. (All hope isn't lost--we just need to appeal to the legislature to enact new laws to ensure the interests of lenders are adequately protected--in the case he discussed, perhaps some carefully targeted donations to key members of the legislature would help them focus their attention on the problem?)
To reiterate JE's point, Justice Scalia would have interpreted a statute as favoring a deadbeat borrower over the financial institution that the deadbeat bilked because that is what the "plain meaning" of the statute required.
I had some concerns, however, that JE may have been "casting pearls before swine," so to speak. I'm sorry to say your post seems to confirm my fears.
But I'm not giving up all hope--go back and spend a few minutes reading JE's post.
Occasionally those who have been brainwashed by standard libtard orthodoxy will have a "moment of clarity," exercise their critical thinking skills, and then it all starts making sense--before you know it, we've got another good conservative on the team!
|
|
Fat Dad
Trad climber
Los Angeles, CA
|
|
|
Feb 26, 2016 - 02:08pm PT
|
I wasn't referring to John's post. His are always intelligent and well thought out. I don't always agree with him, but I understand his position and will sometimes respectfully disagree.
You, on the other hand, appear to believe that merely calling someone a "libtard" is persuasive argument. Rather, it appears to be the extent of your abilities to debate with someone who has a different perspective than your own. From your posts, you are incapable of distinguishing, let alone rebutting, an opinion other than your own. Pity your clients who pay an hourly rate for such fine work.
|
|
Craig Fry
Trad climber
So Cal.
|
|
|
Feb 26, 2016 - 02:39pm PT
|
No Liberals voted to allow Bush to take the Presidency
So John is wrong
Scalia Rewrites History, Claims 5-4 Bush v. Gore Decision ‘Wasn’t Even Close’
BY IAN MILLHISER MAR 9, 2012 1:30 PM
During a speech at Wesleyan University last night, Supreme Court Justice Antonin Scalia offered a strange revision of the time he joined with four of his conservative colleagues to make George W. Bush president:
At the end of the speech, Scalia took questions from the audience. One person asked about the Bush-Gore case, where the Supreme Court had to determine the winner of the election.
“Get over it,” Scalia said of the controversy surrounding it, to laughter from the audience.“
Scalia reminded the audience it was Gore who took the election to court, and the election was going to be decided in a court anyway—either the Florida Supreme Court or the U.S. Supreme Court.
It was a long time ago, people forget…It was a 7-2 decision. It wasn’t even close,” he said.
Bush v. Gore was not a 7-2 decision — and indeed, Scalia could tell this is true by counting all four of the dissenting opinions in that case. Although it is true that the four dissenters divided on how the Florida recount should proceed — two believed there should be a statewide recount of all Florida voters while two others believed a narrower recount would be acceptable — not one of the Court’s four moderates agreed with Scalia that the winner of the 2000 presidential election should effectively be chosen by five most conservative members of the Supreme Court of the United States.
It was a purely partisan vote
Scalia was Cheney's hunting buddy
|
|
blahblah
Gym climber
Boulder
|
|
|
Feb 26, 2016 - 03:15pm PT
|
I don't always agree with him, but I understand his position and will sometimes respectfully disagree.
Perhaps you understand his position but your post doesn't reflect any such understanding. Your post was directly contrary to JE's and failed to even hint at an awareness of the points that he made. It's not a question of your being right or wrong--you're not even in the game.
I'm losing hope in expecting much in the way of civil discourse from you, but you may want to go back and look at your posts directed to me on this thread before getting too butt hurt that I called you a "libtard" (the horror!).
Craig--you may well be right about Bush v. Gore--we'll have to see if JE is interested in elaborating, I don't have time or interest in looking at the various opinions.
An interesting postscript to Bush v. Gore is the various attempts to determine what would have happened if there would have been further recounts--it's hard to get a straight answer, but what I've read suggests that Bush would have won under the most likely recount scenarios, although there are some under which Gore would have.
|
|
healyje
Trad climber
Portland, Oregon
|
|
|
Feb 26, 2016 - 04:29pm PT
|
What's galling in GvB isn't the outcome, it's that after endless spewing by the right about 'states rights' and 'activist justices', the five conservatives on the court deigned, in one of the most activist moves the court has seen, not to leave the matter to the Florida supreme court.
|
|
blahblah
Gym climber
Boulder
|
|
|
Feb 26, 2016 - 05:50pm PT
|
^ ^
Healyje remember the old legal adage that "hard cases make bad law"--the justices are human after all, and all of them were up against it on that one.
Best to see that case as an outlier and not especially useful in evaluating any of the justices' overall jurisprudence.
I suppose it was akin to what lawyers call "hometowning"--probably hard to deny there was a bit of partisanship on that one.
|
|
healyje
Trad climber
Portland, Oregon
|
|
|
Feb 26, 2016 - 06:09pm PT
|
...as an outlier...
Yes, an incredibly hypocritical and activist outlier.
|
|
Jorroh
climber
|
|
|
Feb 26, 2016 - 07:10pm PT
|
"The key ruling in Bush v. Gore, namely that the Democrats controlling the counting of votes couldn't change the rules after the election, was a 7-2 decision, so it was more than just a conservative decision"
total BS ... did all of the 7 agree for the same reason?
oops..I see that that was already pointed out. Nevertheless, classically disingenuous as usual from JE.
|
|
Jorroh
climber
|
|
|
Feb 26, 2016 - 09:40pm PT
|
"Ahgast".... sounds painful John.
I too abhor the theoretical tyranny that us pontificating rich white guys have to endure,
but you'll forgive me if I prefer to focus on actual tyranny...the kind that actually hurts actual people.
you know?...the kind where a black guy smoking a cigarette on his doorstep at night ends up walking out of jail a couple of months later with all his money gone... why?....no reason... except that he was randomly dragged into a justice system that was set up to screw him with no practical recourse on his part.
Or how about an unelected (and in all probability outright racist) supreme court justice deciding that it was ok for a state with a long history of racism to institute a voter id law to combat non-existent....and I do mean absolutely f*#king non-existent.... voter fraud. Then that same state to promptly remove the offices where voters could get said ID's, primarily from black districts of course....surprise, surprise.
Actual people actually getting hurt by the actual legal system.
|
|
Fat Dad
Trad climber
Los Angeles, CA
|
|
|
Feb 26, 2016 - 10:30pm PT
|
Blahblah,
My posts are directed to you because you are a chickenshit incapable of defending the crap you spew under the disguise of legal argument. You have not provided any facts or support for any position you have offered in this thread. Rather than attempt to do that, you have merely name called and dodged the issue, which is more or less an admission that you nothing you can offer. Still, that's fine. You can call me whatever you want. I'm a litigator; I don't care. I don't have to defend the fact that I am a liberal. We see reality, not pretend that the facts are something else as a basis of supporting our belief. Put up or shut up.
|
|
|
SuperTopo on the Web
|
Let us know!