Obama makes his nomination for Supreme Court

[TotallyOz]

Not the Lesbian I had hoped for but it is a woman and hispanic. She would bring a great deal of diversity to the court. Do you think your confirmation is going to be contentious? Do you think he picked a hispanic lady to quell the opposition before they even begun? Lets face it, the hispanic vote is a large part of his success and they are getting more powerful. To have the Republican's attack her may blow up in their face.

[Guest Conway]

There have to have been better candidates than this in my opinion. The New Republic was doing a preview of the strengths and weaknesses of top contenders for the nomination. Critique of Justice Sotomayor is not very kind to her intellect and her judicial abilities.

We already have a head strong bully in the executive branch who seems to put his politics in priority over the law. Fortunately, we can vote him out after four years. We don't have that luxury if the Senate confirms a head strong bully to the Supreme Court.

http://www.tnr.com/story_print.html?id=45d...63-04e10199a085

[caeron]

Do you really think Alito and Scalia aren't headstrong bullies?

[AdamSmith]

Do you really think Alito and Scalia aren't headstrong bullies?

Not to mention, courtly demeanor notwithstanding, Roberts.

[Guest StuCotts]

We already have a head strong bully in the executive branch who seems to put his politics in priority over the law. Fortunately, we can vote him out after four years. We don't have that luxury if the Senate confirms a head strong bully to the Supreme Court.

http://www.tnr.com/story_print.html?id=45d...63-04e10199a085

From triumphalist to whiny. A noticeable change of tone that never manages to make it to inteesting.

[manticore]

There have to have been better candidates than this in my opinion. The New Republic was doing a preview of the strengths and weaknesses of top contenders for the nomination. Critique of Justice Sotomayor is not very kind to her intellect and her judicial abilities.

We already have a head strong bully in the executive branch who seems to put his politics in priority over the law. Fortunately, we can vote him out after four years. We don't have that luxury if the Senate confirms a head strong bully to the Supreme Court.

http://www.tnr.com/story_print.html?id=45d...63-04e10199a085

Read that TNR article carefully.

Notice how much use Rosen makes of anonymous sources,

and how eager he was to pass along hearsay. I mean, one

quote is introduced as "said to have leaned over and said".

A former clerk for another judge is quoted as saying

"I know the word on the street is that she's not the

brainiest of people, but I didn't have that experience."

Look what that quote does. It's in a paragraph that's

included for "balance", i.e. to say positive things about

Sotomayor. But the quote starts off by saying there's

a consensus that Sotomayor isn't so sharp.

Rosen has quoted an anonymous source telling

us what the word on the street is. Sheesh.

See http://dissentingjustice.blogspot.com/2009...ns-utterly.html

for more on why it's a lightweight piece.

[TampaYankee]

Read that TNR article carefully.

Notice how much use Rosen makes of anonymous sources,

and how eager he was to pass along hearsay. I mean, one

quote is introduced as "said to have leaned over and said".

A former clerk for another judge is quoted as saying

"I know the word on the street is that she's not the

brainiest of people, but I didn't have that experience."

Look what that quote does. It's in a paragraph that's

included for "balance", i.e. to say positive things about

Sotomayor. But the quote starts off by saying there's

a consensus that Sotomayor isn't so sharp.

Rosen has quoted an anonymous source telling

us what the word on the street is. Sheesh.

See http://dissentingjustice.blogspot.com/2009...ns-utterly.html

for more on why it's a lightweight piece.

These 'anonymous' remarks about her intellect seem strongly inconsistent with her academic and professional resume`. Anonymous remarks are the usual tool to conduct character assasination.

She may not be well loved by former colleagues and acquaintances. Although I don't know that to be the case either, that along with the usual political motives might provide the grist for this mill. I'm sure we'll get an accurate picture as well as plenty of distortions before this is done.

Barring compromising photos of her with animals surfacing on the internet, her confirmation is a certainty. This according to the mumbles coming from the Senate Republicans. But not before conservative chest thumping and breast beating to stir the base and refresh the RNC coffers.

It will be entertaining to watch this GOP approach-avoidance tightrope walk, as each bite the Conswervatives/GOP seek to take out of her ass will remove a bite out of theirs with the Hispanic electorate. This exercise in self canibalism will be interesting to watch. Hopefully, it will hasten the reform of the party into something that the middle of the road can embrace again.

[Guest Conway]

Read that TNR article carefully.

Notice how much use Rosen makes of anonymous sources,

and how eager he was to pass along hearsay. I mean, one

quote is introduced as "said to have leaned over and said".

A former clerk for another judge is quoted as saying

"I know the word on the street is that she's not the

brainiest of people, but I didn't have that experience."

Look what that quote does. It's in a paragraph that's

included for "balance", i.e. to say positive things about

Sotomayor. But the quote starts off by saying there's

a consensus that Sotomayor isn't so sharp.

Rosen has quoted an anonymous source telling

us what the word on the street is. Sheesh.

See http://dissentingjustice.blogspot.com/2009...ns-utterly.html

for more on why it's a lightweight piece.

Why, in your opinion would the new Republic seek to discredit a judge that has clearly stated that she believes in legislating from the bench (which the New Republic as a leading opinion magazine of the left should support)? If it was the National Review making the criticism, I think that you'd have an argument in that regard.

What Scalia, Thomas and Roberts have that this nominee does not is an unimpeachable record on the bench. This justice's own body of work doesn't support that she shares that trait.

One paragraph appellate dissents? Three of the five cases that she has ruled on have been overturned by the Supreme Court? Peers describe her work as sloppy and lacking substance.

If that's what we wanted in a justice, we could have had Harriett Myers. Where there is smoke there's fire. Fortunately for the President, there is not enough spine the in senate Republicans to bat an eye at this nomination.

Let's see if the press is as quick to dissect this candidate as it did the equally unqualified Myers. They may as well have nominated JLo.

[MsGuy]

Guys, right now there's not enough information available to make even a cursory judgment about Sotomayor. Hold off a day or two and this will all be a lot clearer. I'm not saying that there won't be a lot to consider about Obama's 1st Supreme Court nominee, just that what we have now is too fragmentary to support a useful discussion. I'm jumping up & down to find out more myself, but if it ain't there it ain't there. By this time tomorrow night everybody from Huffington to Hannity will be posting info as fast as they can type.

[MsGuy]

A link to the Wall Street Journal's first take on Sotomayor's record.

http://online.wsj.com/article/SB124338260937756559.html

[manticore]

Why, in your opinion would the new Republic seek to discredit a judge that has clearly stated that she believes in legislating from the bench (which the New Republic as a leading opinion magazine of the left should support)? If it was the National Review making the criticism, I think that you'd have an argument in that regard.

I was encouraging a close reading of the article to see if it has merit.

Looking at who published it (and supposed whys) are no substitute for that.

Three of the five cases that she has ruled on have been overturned by the Supreme Court?

The Supreme Court overturns 61% of the cases it hears in general.

(These figures don't count all the cases they tacitcly concur with by not taking the appeal.)

[Guest Conway]

I have no issue with the President appointing a liberal justice. That's my expectation and, really, it is going to have little bearing on the court as Anthony Kennedy still will remain the swing vote on 5-4 issues.

However, would it have been entirely possible for the President to find a liberal justice with the intellectual prowess and practical, detailed judicial experience of Ruth Bader Ginsburg versus this person who pens one paragraph dissents and lacks respect from others withing the appellate court community?

I would like to hope so. I fear that her presence is going to dumb down the court dramatically. Since the epic battle over Robert Bork, judicial experience and intellectual intelligence have taken a back seat in the Supreme process of nomination and confirmation to political positions of those candidates.

I could care less of Sotomayor supports NAMBLA so long as she can pen a concisely written and justifiable argument for her position in the event that the legality of NAMBLA ever reaches the court.

[manticore]

However, would it have been entirely possible for the President to find a liberal justice with the intellectual prowess and practical, detailed judicial experience of Ruth Bader Ginsburg versus this person who pens one paragraph dissents and lacks respect from others withing the appellate court community?

Please cite some of her dissents you don't like.

I fear that her presence is going to dumb down the court dramatically.

Where (besides the TNR piece) did you get this idea?

You knew she was valedictorian of her high school class and graduated summa cum laude at Princeton. yes?

[TampaYankee]

Why, in your opinion would the new Republic seek to discredit a judge that has clearly stated that she believes in legislating from the bench (which the New Republic as a leading opinion magazine of the left should support)? If it was the National Review making the criticism, I think that you'd have an argument in that regard.

That was not at all my take on her comments.

Often the law is clear cut for a given set of circumstances and the application is straightforward. Sometimes it is not. It is a fact that laws are written by men and women (mostly men) who don't always say precisely or clearly what they intend to say. This happens all the time. It is not intentional. For example, everyday I see poorly written articles that lead to a certain ambiguity based on faulty grammar and/or puncuation. I'm sure care is given to drafting laws. However, unintended ambiguity or insufficient specificity are sometimes the cause of cases that find their way to higher courts. After all, if the law was absolutely clear and the circumstances always those anticipated in the drafting of the law there would be no need for appeal or attorneys for that matter. All appeals would be denied as a matter of settled law.

Uncompromisingly clear written exposition is the exception more than the rule from my experience, and writing and reading was a significant part of my profession. Attorneys, and by extension legislators, as a class are not imbued with any better writing capability than the breadth of other professions. Even the best attempts at clarity often fall short because the authors are imperfect humans. And here is a secret... the editors of most documents including legal docs (law text) are English technicians, not specialists of the discipline under exposition. That means that final textual language intent rests with the lawmakers vetting the technicians version of the doc. The problem with this is the author knows and often reads his intent in what he sees, overlooking amibguities that may appear to someone unfamiliar with the intent. I know, many times I have found this myself when I read something cold that I had written the past.

It is also the case that circumstances arise not originally anticpated by law makers. It is impossible to anticipate all circumstances and factual variables that may influence any given case. Whether nuanced or stark divergence from the originally viewed circumstance, the court is called on to apply the law to the case at hand.

For any particular case, such ambiguity in the law or circumstances is resloved at the appellate court level. Thus the court establishes what is proper application of the law with any unintended ambiguiities and unforseen circumstances present in the case at hand. Sometimes precedent is set. That is setting a legal policy. Other times existing precedent is deemed to apply-- a policy set by some other court at some other time. This is what the Appellate Courts do and that is what she meant about "we (the Appellate Courts) set policy". Who else is to do it? Someone must be Solomon!

Our system also recognizes that this 'appelate legal policy' is also set by imperfect humans open to error, thus leaves it open for review by the SCOTUS, which is it's mission. This is not to denigrate the appleate courts but recognizes the imperfection of the process. Our system even recognizes the imperfection of the SCOTUS which permits it to review itself.

Only when perfectly drafted laws that anticipate all possible circumstances and facts are set down by the law givers will we be able to forgo the need for our appellate arbiters that determine the usually ultimate application of law to individual cases.

What Scalia, Thomas and Roberts have that this nominee does not is an unimpeachable record on the bench. This justice's own body of work doesn't support that she shares that trait.

One paragraph appellate dissents? Three of the five cases that she has ruled on have been overturned by the Supreme Court? Peers describe her work as sloppy and lacking substance.

Clearly your arguments lie in the eye of the beholder. Her record is really quite outstanding by some measures. True that three of five decisions were overturned for a 60% reversal rate. However, I understand that Alito had a 100% reversal rate, 2 for 2. Does that mean he is a failed jurist? Roberts had no reversals. He had no decisions to reverse as he never sat on an appeals court. I wonder how he might have faired if he had 380 opinions open to review?

Moreover, two of the three Sotomayor reversals put her on the same side as Souter in these cases. Both were 5-4 decisions.

Borrowing from Sam Stein at The Huff Post ( http://www.huffingtonpost.com/2009/05/27/s...d_n_208362.html ) Taken as a whole, the decisions suggest that, if anything, Sotomayor is of a similar judicial philosophy to the justice she is poised to replace. The numbers, moreover, make her appear decidedly non-controversial. In an eleven-year career, she issued 380 opinions. Five were appealed to the Supreme Court and only three were reversed. According to SCOTUSblog, a 60 percent reversal rate is actually lower than the overall Supreme Court reversal rate for the past five years. In 2008, for example, the Court reversed 75.3 percent of the cases it considered.

It seems to me and Sam Stein and others that her case stats reveal her to be an experienced hard working judge with a 992 batting average that is not out of the moderate-to-liberal mainstream consistent with Souter, Stevens wing of the Court.

If that's what we wanted in a justice, we could have had Harriett Myers.

I don't think you can fairly make this comparison. The stats just don't support it. You may not like her. There may be better candidates. But I think the record shows that she does not deserve being compared in an equivalent manner with Myers.

[Guest Conway]

You knew she was valedictorian of her high school class and graduated summa cum laude at Princeton. yes?

And George Bush went to Yale. That said, I would not support Holly Rogers either. She was the valedictorian of my high school class.

[manticore]

And George Bush went to Yale. That said, I would not support Holly Rogers either. She was the valedictorian of my high school class.

I still am interested to know why you think Sotomayor isn't sharp.

[TampaYankee]

It seems that Sotomayor has much in common with Scalia and Alito.

http://www.huffingtonpost.com/2009/05/28/a...k_n_208531.html

Scalia is on record with similar remarks recognizing that courts, in fact, make policy, or law if you will, as a matter of natural function.

Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well.

In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed.

Alito shares reverence for his background of immigrant parents and how that will shape his perspective.

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. ...

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.

I included the link so the the context of the remarks can be read as well.

This alignment of Sotomayor with Scalia and Alito on the propositions does not mean that either of the propositons is necessarily right, only that if they serve to disqualify Sotomayor then it follows that Scalia and Alito also are disqualified by their own words as well. How could this be lost on the Senators who must advise and consent, and on scholars, reporters and pundits who follow closely these Justice coronation rituals whenever they arise?

I personally don't believe that any of them are disqualified on this basis but for those who believe such similar comments reflect differently on different individuals then I must point out ...

"A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." Ralph Waldo Emerson

Bartelby.com offers the following interpretation:

A great person does not have to think consistently from one day to the next. This remark comes from the essay "Self-Reliance" by Ralph Waldo Emerson. Emerson does not explain the difference between foolish and wise consistency.

I believe this accurately captures the primary guidance for all politicians and most pundits of any stripe. Yes, many great persons for sure.