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blahblah
Gym climber
Boulder
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May 28, 2009 - 03:19pm PT
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JEL--I agree with you for the most part, but don't you think you may be jumping the gun by saying that she deserves to be confirmed? Don't there need to be hearings and a close examination of her qualificaitons, and any troubling issues need to be investigated and considered?
It's easy for the Obama fans to conclude that that has already been done, but remember, this is the guy who has nominated numerous people with many skeletons in their closet that only came out after nomination, and they subsequently had be withdrawn (Bill Richards, etc.)
While we would think that the Obama team learned from their mistakes and did a better job in nominating her than they did in some previous appointments, I don't think anything should be taken for granted.
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blahblah
Gym climber
Boulder
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May 28, 2009 - 03:39pm PT
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Fat Dad: you might want look up what "strict constructionalist" means, since it's apparent from your post that you have it backwards.
It does not mean blindly applying precedent.
It does mean that judges should interpret a document (such as a constitution) "according to its literal terms, without looking to other sources to ascertain the meaning." (Quote from Black's Law Dictionary, 7th ed., the version I happen to have sitting next to me.)
So, to spell it out, a judge considering whether "separate but equal" violates the constitution who is a "strict constructionalist" would base his/her decision on the text of the constitution, not on a prior case, which was decided by judges who were NOT strict consructionalists.
The 14th Amendment basically says government can't discriminate on the basis of race. To a strict constructionalist, Plessy was wrongly decided, as are cases that allow for affirmative action (read, discrimination by the government against "whitey," Jews, and Asians).
Hope that clears it up a bit for you.
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shutupandclimb
climber
So. Cal..............d00d
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May 28, 2009 - 04:15pm PT
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I Have to agree with Bluering (scary). La Raza is a Hispanic racist movement. If I belonged to a similar group that was centered on similar ideas regarding my race, I would be acting on ideas that are certainly racist. Is a double standard at work? Racism is Racism, no matter what group is endorsing the agenda, isn't it?
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Fat Dad
Trad climber
Los Angeles, CA
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May 28, 2009 - 04:19pm PT
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blahblah,
I think what you said makes a lot of sense but the heart of the has been and remains what the Constitution and amendments ultimately mean. Your right that my concept of sense of strict constructionism is not dead on, rather it's partially blended with the concept of stare decisis, that precedent controls (but we know that is not always the case). I think part of my perspective is that the people who fancy themselves strict constructionists, such as members of the Federalist Society, favor decisions with a socially conservative agenda while criticizing those that may create societal change.
Let me provide an example, and this also addresses JLeaz's point about Robert Bork. In one of Bork's books (don't remember the title), he argued that the 13-15th amendments were (edit: not) intended to desegrate society because schools immediately after the end of the Civil War were not desegregated as a result of the amendments. Huh? That's a legal argument?
The problem I have with Bork and people of his ilk is that there's an intellectual dishonesty about how they "strictly construe" things. Any person with a sense of history and social inequities is going to realize that schools weren't desegregated after the Civil War not because the new amendments didn't apply to them. It's because that American society, despite the new amendments, wasn't ready desegregate its institutions. For Bork to have made that argument with a straight face demonstrates what a train wreck he would have been on the Court.
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graniteclimber
Trad climber
Nowhere
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May 28, 2009 - 04:20pm PT
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Alberto Gonzales was also a member of La Raza but no one complained about that when he was going through his confirmation process to become Attorney General.
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Porkchop_express
Trad climber
the base of the Shawangunk Ridge
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May 28, 2009 - 04:21pm PT
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I dont think that she is a racist. Indeed even if she were, that would not preclude her from being able to rule according to the law if she really did her job properly. The idea is that people selected should be willing and able to set aside their own ideology enough to protect the constitution and uphold ITS law, not impose their own.
The latter aspect is where I would be apprehensive in terms of her potential shortcoming than her so called racism. Legislation from the bench is more of a danger than the so called racist allegations but unfortunately the less important aspects of the issue are much more "viewer friendly".
Additionally, she is my wifes third cousin. Not like that matters, but its kinda funny to me.
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blahblah
Gym climber
Boulder
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May 28, 2009 - 04:38pm PT
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Fat Dad: thanks for your last post and I didn't mean for mine to sound snippy (as it sort of sounded when I reread it). I agree with much of what you wrote, and I think we would both agree that many judges decisions seem to be determined by their desired outcome more than the tools that they (allegedly) use to reach those decisions.
To me, that applies with equal force to liberal judges as well as to conservatives (and I like JEL's reference to California's infamous J. Bird, who I think exemplified the epitome of outcome-determinative jurisprudence).
I think those who haven't had a legal education or deep exposure to law think of judges as being good in the sense that, say, a baseball umpire is good (to use the comparison that often gets used now). But in reality, it's more good in the sense that a poet is good--there is no objective correctness to legal decisions, especially those made at the Supreme Court level, and it's mostly a matter of policy preferences (bounded by some formal rules of logic and the old straight-face test).
Having said that, there are the occasional legal superstars who make significant contributions to legal though even without being on the Supreme Court (such as L. Hand mentioned by JEL, and J. Posner, at least as it seems to me).
I don't think anyone has accused Sotomayor of being a true superstar, but that probably doesn't make her unique or even uncommon for SC nominees.
fattrad: I agree with response to JL's post, but his posts are so deeply mired in the context of identity politics that it doesn't seem like any meaningful debate is possible. That's unfortunate, but I wouldn't know how to even get started to address someone who so readily assumes characterizes someone based on age, sex, and skin color, and has such an obvious disdain for people who have a particular combination of those attributes (old, male, white).
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Norton
Social climber
the Wastelands
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Topic Author's Reply - May 28, 2009 - 05:03pm PT
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La Raza is NOT a racist organization, and its members are NOT racists.
Republicans are saying this because they are struggling to find something, anything, to oppose Sottomayor's nomination.
They can't come up with anything regarding her legal education or her diversity of legal experience. They can't oppose her because she is female or Hispanic, those reasons won't do it.
As Granite pointed out, the REPUBLICAN Alberto Gonzales was a member of La Raza, he was nominated by a REPUBLICAN President "W"
and confirmed by the, at that time, REPUBLICAN controlled House and Senate. They had no problem with his membership or the fact that he was a Hispanic.
Therefore, Republicans CANNOT NOT use the La Raza membership as a reason to oppose Judge Sottomayor.
But they are desperate, just out of general principle, to say NO to everything Obama says and does. My own firm belief is that virtually every Republican is like Limbaugh, they want Obama and the Democrats to "fail", they do want our economy to return to health because that would mean that credit would be due Obama.
And so now they try to twist and mangle logic.
They are hanging their hats on two things"
One, calling her a racist because she, and two other WHITE Justices, ruled to uphold established law.
See my previous post on this LIE, completely discrediting this
weak ass argument.
The second attempt to discredit Sottomayor is calling her, again, a racist because she, like MILLIONS of other Latinos is a member of an organization that seeks to promote and dignify Latino accomplishments.
From Wiki: La Raza
The term originated in the 1925 book La Raza Cósmica written by Mexican writer José Vasconcelos. He described La Raza Cosmica as the product of gradual racial mixing that was already underway in the Hispanic world. Vasconcelos believed that eventually all of the people within the Spanish Empire would be completely mixed into a new race.
Hispanic people all around the U.S. have also started using this term to identify themselves. Nonetheless, the term and idea associated with it have been mainly adopted by some Mexican people in the United States to express pride in their nation.
In general usage, La Raza implies dignity and pride for these people regarding who they are and their places of origin.
The National Council of La Raza (NCLR) is a non-profit and non-partisan advocacy group in the United States. It is not to be confused with La Raza Unida. Its stated focus is on reducing poverty and discrimination, and improving opportunities for Hispanics. According to the organization's website, it is "the largest national Hispanic civil rights and advocacy organization in the United States" and "serves all Hispanic subgroups in all regions of the country". NCLR receives funding from philanthropic organizations, such as the Ford Foundation, and corporations such as Citigroup and Wal-Mart. NCLR serves its constituency by means of its Affiliates, nearly 300 community-based organizations. The NCLR is headquartered in Washington, D.C. and maintains eight regional offices in Atlanta, Chicago, Los Angeles, New York, Phoenix, Sacramento, San Antonio, and San Juan, Puerto Rico. The current president is Janet Murguía.[1]
NCLR works on a variety of different issues affecting the Latino community in the U.S. such as health, housing, education, workforce development, and youth leadership. NCLR’s Institute for Hispanic Health works to reduce the incidence, burden, and impact of health conditions such as diabetes, heart disease, cancer, and HIV/AIDS. The NCLR Homeownership Network operates in 20 states and provides counseling on purchasing a home and managing the investment after purchase. NCLR also has both early childhood and secondary education programs which stress literacy, college preparation, and parent involvement. The organization’s education programs also address the needs of Latino and English language learner students through a network of community-based charter schools. In addition, NCLR works to increase employment opportunities for Latino youth through its Escalera program. Youth leadership is also stressed in the Líderes initiative that links youth development organizations around the country into one national network. Through all these programs, NCLR provides technical assistance to its network of community-based organizations around the country working on the same issues.
NCLR’s policy team also works on a range of similar issues including civic engagement, criminal and juvenile justice, wealth-building, housing, education, health, and that for which they are most well-known, immigration. The organization advocates on behalf of Hispanics in the United States by conducting research and informing policy-makers about how proposed or existing legislation affects the Latino community.
History
The NCLR grew out of efforts to form a national civil rights organization that would advocate for Mexican Americans. In the early 1960s, the National Organization for Mexican American Services (NOMAS) persuaded the Ford Foundation to fund a study of Mexican Americans. The Foundation went further, hiring Herman Gallegos, Dr. Julian Samora, and Dr. Ernesto Galarza to consult with other leaders on ways to improve conditions for Mexican American communities. [2]
As a result of these discussions, Gallegos, Samora and Galarza founded the Southwest Council of La Raza (SWCLR) in Phoenix, Arizona, in 1968. Financial support from the Ford Foundation, the National Council of Churches, and the United Auto Workers allowed the SWCLR to get off the ground, and the organization received 501(c)(3) status later that year.[3]
In 1973, the SWCLR became a national organization, changed its name to the National Council of La Raza, and moved its headquarters to Washington, D.C. Early disagreements among the leadership led the Ford Foundation to threaten to withhold funding, resulting in President Henry Santiestevan's resignation and the election of Raul Yzaguirre.[4]
In 1973, the NCLR bylaws were amended to require equal representation of women on the board of directors.[5]
Beginning in about 1975, the NCLR began expanding its focus to include the issues of non-Mexican American Latinos. This policy was made official in 1979. By 1980, the NCLR was funded almost entirely by the federal government. When the Reagan Administration slashed social funding, the NCLR was forced to cut back the scale of its operations. As a result, the organization began focusing on national policy and concentrating its efforts in Washington, D.C. After the 1996 Personal Responsibility and Work Opportunity Act, state governments exerted more control over the disbursement of welfare funds, which led to the development of the NCLR's Field Advocacy Project to influence decisions at the state and local levels.
Criticism
NCLR is often criticized by commentators for allegedly espousing separatist or irredentist sentiments. Anti-illegal immigration websites, such as American Patrol (which has been labeled a hate group by the SPLC [6][7]) and The American Resistance, accuse NCLR of encouraging illegal immigration to the United States, and the latter hosts an exhaustive list of companies and organizations that donate to the NCLR.[8] However, the organization states on its website that it “has repeatedly recognized the right of the United States, as a sovereign nation, to control its borders. Moreover, NCLR has supported numerous specific measures to strengthen border enforcement.” It also backs up this statement with evidence.[9]
Some critics, including conservative talk radio host George Putnam, consider NCLR exclusionary in its approach to civil rights.[10] The most powerful person to criticize NCLR was Republican congressman Charlie Norwood of Georgia's ninth district. In a December 2005 edition of the conservative publication Human Events, Representative Norwood criticized congressional earmarking of four million dollars for NCLR housing initiatives. He said that "we ought not to send taxpayer's money to people who absolutely advocate perhaps using that money for the country not to follow the law of the land and not to secure our country's borders."[11] NCLR wrote a letter to Rep. Norwood explaining that funding is given to a subsidiary of the organization called the Raza Development Fund which provides funding for affordable housing, health care centers and educational facilities.[12] NCLR also offered to meet with Rep. Norwood to further discuss any doubts he had about the organization or its work.
On September 20, 2006, Representative Norwood issued a press release calling NCLR a "radical [...] pro-illegal immigration lobbying organization that supports racist groups calling for the secession of the western United States as a Hispanic-only homeland" and accusing the organization of undermining "the ability of state and local police to fight criminal illegal aliens."
The NCLR immediately issued a press release to refute Norwood's claims and to demand an apology. He offered to extend an apology on seven conditions:
1. Denounce and sever all ties with MEChA and any other organizations with which they are now or have ever been associated or funded which held to the racist doctrines published by MEChA.
2. Denounce the statement "Por La Raza todo [sic]. Fuera de La Raza nada" [“For the race everything, outside the race nothing”] as repugnant, racist, and totally incompatible with American society or citizenship.
3. Repudiate all claims that any current American territory rightfully belongs to Mexico.
4. Acknowledge the right of all Americans to live wherever they choose in the United States, and that no section or region of this country should be segregated by race or ethnic heritage.
5. Commit to sponsorship of nationwide educational programs to combat racism and anti-Semitism in the Hispanic community.
6. Seek neutral, third party supervision to ensure that all community and individual assistance programs offered by La Raza and groups supported by La Raza are accessible to all Americans, regardless of race or ethnicity, and that participation in those programs is fully compliant with Equal Opportunity laws.
7. Acknowledge the internationally recognized borders of the United States, the right of the citizens of the United States to determine immigration policy through the democratic process, and the right of the United States to undertake any and all necessary steps including military action to effectively enforce immigration law and defend its borders against unauthorized entry.
NCLR responded to Norwood's conditions apology in a point-by-point press release defending its policies, which it claims have never been racially or ethnically exclusionary, never supported and does not endorse the notion of a “Reconquista” or “Aztlán,” has never used, and unequivocally rejects, the motto “Por La Raza todo. Fuera de La Raza nada", has supported numerous measures to ensure that all Americans have the freedom to choose where to live, and stated that its programs are already covered by civil rights laws administered by independent agencies at the federal, state, and local level.[13] It also disputes the charge that it supports illegal immigration, constantly reiterating its support for effective and reasonable border security and immigration-law enforcement. In a speech in San Diego, NCLR CEO Janet Murguía stated: "First, as a sovereign nation, the United States has the right to determine who comes and who stays. . . [It also] has a right to consider enforcement at a variety of levels, including border enforcement, interior enforcement, and workplace enforcement. . . We support enforcement...[because] as Americans, we recognize it's the right thing to do."
So, WHAT IS RACIST ABOUT THIS ORGANIZATION?
And, why would Alberto Gonzales, among MILLIONS of other Latino Americans, all be considered "racist" because they are members,
according to Republicans DESPERATE to twist any fact to oppose
Obama's pick.
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JEleazarian
Trad climber
Fresno CA
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May 28, 2009 - 05:03pm PT
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Membership in questionable organizations hasn't necessarily disqualified nominees in the past. Hugo Black was a member of the Ku Klux Klan in his younger days.
John
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Norton
Social climber
the Wastelands
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Topic Author's Reply - May 28, 2009 - 05:07pm PT
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Fattrad, why are you so relentlessly WRONG on just about everything?
You say the barriers to equal opportunity were taken down some thirty years ago?
You got to be kidding. Yes, laws were finally passed, but the real "barriers" remain in the prejudices and actions of those in positions of power.
You know damn well that the playing field is far from level.
What does it say about YOU that you believe otherwise?
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JEleazarian
Trad climber
Fresno CA
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May 28, 2009 - 05:11pm PT
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Fat Dad:
The paraphrase of Bork you make, taken greatly out of context, is rather like what you accuse Sotomayor's opponents of doing. Robert Bork's opinions were never out of the mainstream of American Jurisprudence, nor were they intellectually dishonest. His books (such as The Antitrust Paradox) were often provocative, but not his decisions.
He was simply far from the politics of Ted Kennedy and his friends and, apparently, of you. Using the criteria used on Bork would have precluded Justices Brandeis, Black, Douglas, and countless others from membership on the court. The only train wreck Bork would have caused would be the constrenation of liberals facing principled arguments with which they disagreed.
The Bork opposition was a travesty from which we still suffer. It's made any judicial nominee who expresses an opinion unconfirmable, and left us with a series of "stealth" nominees, while depriving us of some of the most able judicial talent.
John
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Fat Dad
Trad climber
Los Angeles, CA
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May 28, 2009 - 05:51pm PT
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John (JLeaz),
The Bork statement wasn't taken out of context. It was taken directly from his book. That's what Bork wrote. That's what I'm reporting he wrote. Maybe I improperly suggested that all his decision making would suffer the same flaw as the specific argument I've cited. However, if that's the argument Bork very calmly makes in a self written volume of his opinions, I don't think it's wrong to cite it.
Having said that, for all his intellect, I don't really think he got what the Supreme job was about. When asked during his confirmation hearing why he wanted to serve on the Court, he responded: "It would be an intellectual feast."
That's poetic. However, it's also scary since it creates the distinct impression that he has so distanced himself from the facts and impact of the cases he'd be hearing as to be disinterested about the results. I can't think of a single good judge I've appeared in front of who wasn't concerned about the impact of his or her decisions. I can think of lots of poor jurists who were not concerned.
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noshoesnoshirt
climber
dangling off a wind turbine in a town near you
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May 28, 2009 - 06:13pm PT
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A little more gas on the fire
From Faux news:
"Earlier this year, President Obama's Supreme Court nominee joined an opinion with the 2nd Circuit Court of Appeals ruling that Second Amendment rights do not apply to the states.
A 2004 opinion she joined also cited as precedent that "the right to possess a gun is clearly not a fundamental right." "
citation: http://www.foxnews.com/politics/2009/05/28/sotomayors-gun-control-positions-prompt-conservative-backlash/
Sounds good to me. Keep the feds away from the 2nd amendment, let the states do their own thing.
But it does seem to avoid reality - the 2nd amendment is nothing if not there to protect gun ownership rights, and federal law supercedes state.
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noshoesnoshirt
climber
dangling off a wind turbine in a town near you
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May 28, 2009 - 06:19pm PT
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"We all want OUR judicial activist on the bench, not the other team's."
Nail on the head there.
One person's judicial activism is another's correct judgement.
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dirtbag
climber
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May 28, 2009 - 06:19pm PT
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"We all want OUR judicial activist on the bench, not the other team's. "
Money quote right there (though conservatives won't admit it).
You're on a roll today Dingus.
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GDavis
Trad climber
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May 28, 2009 - 06:22pm PT
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Of course everyone is going to agree with that quote. YOUR judicial picks will always be terrible. Why would I want them? ;D
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blahblah
Gym climber
Boulder
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May 28, 2009 - 06:28pm PT
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No, sorry, you guys need to learn a little more about law--you're not even in the ballpark.
"Judicial activism" is not merely a slur to describe judicial decisions you don't like (although it is that).
While you don't need to be a lawyer to have a meaningful opinion on what judge you want to be on the Supreme Court, it helps to have at least a general understanding of the relevant concepts, and the jargon if you're going to use it (such as "judicial activism").
Just look it up on Wikipedia and learn something.
Here's a my one sentence summary--it's on the fly and maybe not the best: judicial activism generally describes the situation where a court prevents another branch of government from doing something because the "something" is found to conflict with another source of law. Most common example: finding a statute (e.g., statute criminalizing abortion) to be unconstitutional.
Judicial activism can be either liberal or conservative. But it is not merely a smear, and there can be plenty of decisions that YOU (whoever you are) think are idiotic but that cannot at all be described as "judicial activism."
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shutupandclimb
climber
So. Cal..............d00d
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May 28, 2009 - 06:29pm PT
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Re: La Raza. It is an organization whose central idea is to have pride in one's ethnicity and place of origin as an Hispanic. Fine. This doesn't disqualify her by any means.
The point I was making is that there IS a double standard at play. If whitey joins an organization that extols his pride in being white and of his Nordic descent, then he is considered and labeled racist by societal standards. I was making the point that this is such a tricky issue, that from one point of view, it is best lrft alone, and from another, membership in racial pride organizations an admirable thing and is fine.
There IS a double standard at play.
It is a funny thing, but I am a little concerned about being labeled as racist for even making this point as a white person, but I think that very concern even lends credibility to the point itself.
All that being said, With what little I know of the justice nominate, and admittedly what I do know is from press releases from the white house, CNN, and the BBC, she seems to be a fine candidate and will bring a whole new layer of experience to the bench, her life story is captivating, and she seems not to be an activist, but rather a deliberative and thoughtful jurist. S he is also a great pick from a political point of view,and a fine example of how sharp a team we have in the white house. In spite of the off topic point made earlier in this post, I think she will make a fine Justice, giving me yet another reason tohave great admiration for our president and the administration in general.
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shutupandclimb
climber
So. Cal..............d00d
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May 28, 2009 - 06:40pm PT
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I completely agree DM I hope my last post clears up my jumbled thoughts and inability to express myself !
Peace
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JEleazarian
Trad climber
Fresno CA
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May 28, 2009 - 06:42pm PT
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Fat Dad:
Thanks for your explanation. I found it out of context because the implication is that Bork on the Supreme Court would not have seen a problem with separate but equal. That distorts the body of his work, writings, and decisions. The same holds true of his "intellectual feast" quote. I don't particularly want a trial judge who isn't at least a little flexible, but appellate judges who don't use their intellect are usually the poster children for "hard cases make bad law."
Frankly, the worst trial judges I've appeared before are those who are full of themselves, and consider themselves intellectually, morally, and probably sartorially superior to those who appear before them. Those judges simply don't listen, and proceed to demostrate repeatedly that they aren't as smart as they think they are. A close second, though, are judges with an agenda. I've appeared before a great many bankruptcy judges over the years, and those that were "debtors' judges" or "creditors' judges" simply didn't produce the quality of justice our western tradition demands.
In written works as far back as the Torah, justice should depend on what was done, not on who did it. A great deal of the liberal tradition was trying to implement that ideal, because those at the bottom of the economic ladder obtained worse justice than those elsewhere, not just because of unequal access to good advocacy, but because of prejudice against them in the judicial system. I find it ironic that the most "liberal" of modern justices seem to have returned to the idea of status, rather than actions, as the determinative factor for the outcome of a case. (In the spirit of scholarly attribution, Barbara Brudno, a former law clerk for Justice Tobriner on the California Supreme Court, and my torts professor at UCLA in 1976-7, published this thesis in a law review article decades ago. That article was not critical, however, of the trend.)
While I don't consider Sotomayor a "rascist" (see my definition posted earlier), I have grave doubts about the justice of racial discrimination. Nonetheless, as I've now stated ad nauseum, I find her qualified, and support her confirmation.
John
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