:+1:

Additionally, I'm disappointed that both are clearly ideologues. Alito I knew would be this way (like Scalia), but I had hoped Roberts would be more of an even-handed professional.

What ideology and opinions are you talking about?

Roberts & Alito.

But what written opinions or ideologies of theirs do you find so objectionable? (To the point where you actually think they shouldn't have gotten confirmed).

And what type of (realistic) candidate SHOULD Bush have appointed, where you would have been OK with confirmation? Or would you just have opposed any Bush nominee? Which goes back to my original point, would you have a problem with Republicans putting up a fight against Obama's picks, not based on qualifications, but strictly based on who was doing the appointing?

Harriet Miers was obviously a disaster and offensive to everyone, but I don't see the huge problem with Roberts and Alito (other than who appointed them).

Yeeeah... that was very... unspecific ;)

Oh sorry, I don't think they shouldn't have gotten confirmed. Sorry if I gave that impression. Both Alito and Roberts were certainly qualified, and Bush winning two elections gives him the right to nominate justices that fit his worldview. I wish it was otherwise, but that's how things go, and I'm sure a lot of people felt the same about Clinton's nominees.

Ideally, the confirmation process only exists to keep the Harriet Mierss off the bench. There's really no doubt about the actual qualifications of Roberts, Alito, or Sotomayor. Sotomayor wouldn't be my pick, but Obama's the president, it's his call unless he basically abuses that right like Bush did with Miers.

I think that's the intention anyway, and the only thing that makes me back off that at all is the fact that the SCOTUS is far more powerful than was originally intended. As long as the power is used for whatever an individual perceives as "good", it's not a problem, but just imagine 9 supreme court justices you disagree with and the power they could throw around.

Now there's a post with which I can agree, molson.

I was particularly incensed by Alito's dissent (joined by Roberts & Scalia) in Wyeth v. Levine, part of which is, frankly, factually incorrect. Alito states that Wyeth could not have had a stronger warning in their label when, in fact, Wyeth could have specifically warned against the method of administration that was mis-used, causing the injury. In fact, it appears likely that clinical evidence supporting a claim that IV Push is often mis-administered may exist, which greatly, greatly weakens this argument.

Frankly, the dissent read to me like Alito trying to find a reason to protect a corporate entity - a purely ideological stance, not based in a rational view of the case itself.

I could say the same about Alito's dissent on Hamdan v. Rumsfeld - it reads like someone trying to find any justification for the trials as originally constructed. It reads like something you'd get from Bush's White House Counsel.

Actually, I don't think Scalia is an ideologue. He will break from the conservatives on certain issues, usually with free speech, but also on some death penalty cases (I really like his opinion in Ring v. Arizona), and he usually writes strong opinions to back up his reasoning. I really like reading his stuff. He's often compared to Thomas because they often vote together, but they're really different. Thomas is a terrible writer and seems to have a set agenda.

I still think it's too early to tell, but I think Alito will be more like Scalia than Thomas. However, I can understand why people didn't want him confirmed, because he was the most notable pro-life justice ever nominated. He even voted to uphold the PA abortion law that required spousal notification.

Most notable pro-life judge? I'd imagine that those who wanted to overturn Roe may fall there (then again, not everyone who thinks Roe was wrongly decided is necessarily pro-life... I'm pro-choice, but I strongly disagree with Roe - I'm not a substantive due process guy)

The problem I have with Scalia (aside from the obvious ideological differences), is that he makes a big deal about originalism but doesn't hesitate to deviate from this when he wants to save something that matters to him personally. Also, his inability to recuse himself from cases where he has a clear conflict of interest is annoying. Lastly, he seems more intent in preserving Executive power and independence than Legislative power and independence, which kind of goes back to my first point.

As for Thomas - he acts as if he was appointed to the court to vote on his own views, regardless of existing case law.

I meant from a confirmation standpoint. Alito heard the circuit court level of Planned Parenthood vs. PA. It was known how he felt on Roe. He even voted to uphold the spousal notification law, which is as extreme as it gets.

With other nominees, it was strongly suspected, but there were no actual rulings. And sometimes it turned out they weren't (Kennedy, Souter).

First, I agreed with Thomas' comments on that case (which gave loose support to Stevens' majority). Still, I think it is very reasonable to make the dissent Alito wrote. IMO, Stevens' majority was pretty sloppy. He was basically saying that even though Wyeth had a warning for IV Push that matched the FDA's requirement, they should have changed its label without FDA’s pre-approval after receiving information regarding the risk of inproper injection. The problem with that logic is that Wyeth proposed a label change with a stronger warning in that late 80s that was rejected by the FDA (as a result of its own testing).

So, while I think there is some culpability to Wyeth, I think the majority opinion was worse than Alito's dissent. To essentially tell a company that after you met the FDA's requirement, even tried to make a more stringent warning and had it rejected by the FDA, they should have then gone around the FDA to make sure people knew risks not fully validated by the FDA seems pretty weak. Had Stevens made the majority read more like Thomas' opinion, I think the dissent would have been different.

From what I recall, that was a jurisdiction question. It seems you are starting from a desired result and working back to justify in both these cases - as opposed to looking at the existing precedents and legal definitions independent of whether the decision will be "correct". In the Wyeth example, I think the overall decision should have favored with Levine. However, there were a lot of legal reaches were made by Stevens in that decision and I don't have an issue with a supreme court judge noting those in a dissent.

IIRC he kinda was. It was no secret he was big into "natural law". He was kind of a counterweight to Bork, who adamantly wasn't into natural law (at least on the bench), which helped derail him.

Since JPhillips posted Rod "Crunchy Con" Dreher's comments about Sotomayor's "wise Latina" speech, I thought I'd post this take by Ilya Somin at the Volokh Conspiracy.

hxxp://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243483882

Footnote 1 in the Vermont Supreme Court ruling juxtaposes the approved text and rejected text. As you can see, even the rejected text doesn't contraindicate any form of intravenous injection generally, and doesn't mention a particular method of IV administration (such as IV push), specifically.

As David Frederick pointed out in a response to Souter, there's evidence (referenced in an amicus brief by Dr. Budhwani) that in the 80s and 90s Wyeth had access to data (or should have had access to data) that more specifically showed the heightened dangers of using IV push as a method of administration.

It's important to note, however, that Wyeth's defense mostly centered around the idea that FDA Approval absolves them of all liabilities regarding their drug (assuming they provided all factual information to the FDA, of course, for a counter-example see Vytorin, Avandia, Vioxx). I read the majority opinion as saying that primary responsibility resides with the manufacturer and thus FDA Approval doesn't absolve them of responsibility, which may be exposed by individual cases at the state level. Given that the FDA clearly doesn't have the manpower to do extensive clinical trials on every drug, and synthesize the data in a variety of ways to uncover these issues, it's the common sense decision that had to be arrived at.

Which brings us back to the incident itself and its relative lack of warning in the label. While the label is clear that administration by IV methods carries risk, and then delineates what the risk entails in the case of extravasation (where the needle leaves the intended artery or vein and injects into a vein or artery or surrounding muscle tissue - essentially where it shouldn't go) it doesn't go to the length of saying that certain IV techniques, such as IV Push, represent an even enhanced risk of extravasation, and shouldn't be used. In fact, the label says that IV methods can be safe if done carefully.

The consensus in the medical community seems to be that the extravasation risks associated with IV Push are so clear, and the adverse effects of the introduction of Phenergan when introduced to arterial blood so horrible, that it's common sense that one wouldn't use IV Push. So one would assume that the technician who did use this technique (and even ignored the fact that Ms. Levine suffered pain during the push) was clearly too ill-trained to notice that subtlety. Given this it seems the common sense solution would be to contraindicate against IV push in the label, so as to avoid this scenario, and, as I said earlier, there appears to be evidence that Wyeth knew, or should have known, that the higher incidence of extravasation with IV push probably merited this kind of contraindication. Since the updated label the FDA rejected didn't go into this, there's no real indication that the FDA would have rejected such a clear contraindication if Wyeth brought it to them.


Ironically, that's exactly what I thought Alito did in that decision. His dissent essentially reads as "since the Executive is a properly constituted authority, the legal construction of the trials meets that requirement, therefore they're OK" which is, in my opinion, a narrow legal view that ignored the much more important context of the question at hand itself.

I really hate the term "reverse discrimination."

I killed the thread. :(

It wasn't a real impressive thread anyway.

Big ruling by the Supreme Court that could have implications on Sotomayor hearings. Reversal of her ruling in the white firefighters reverse discrimination suit. Certainly will bring her previous statements concerning race into play.

Court rules for white firefighters over promotions

I'm so confused, but not by the actual case...the article posted reads:


So 56 firefighters passed the exam, and the numbers they give were 41+22+18. Seems like 81 passed the exam. Also, if the split was 50/25/25 for whites/blacks/hispanics, why was it that 17 whites and 2 hispanics could expect promotion? It would seem that's a little off.

Finally, and maybe Ginsburg alluded to this, but would the city actually have to use those tests? Couldn't they just say they felt the test was only partly for promotion? I'm not sure this will have a major impact on Sotomayor (who I don't really care that much for) considering she and others upheld a prior ruling that 4 current justices upheld as well.

If I read the decision correctly, it states that the 19 defendents were the highest scores on the test. So while there were minorities that passed the test, the best scores were from the white and hispanics group who was suing. I don't think that the best scores got the promotion.

In regards to using the test results as a partial measure, I think that might have been a good choice. It appears that the defense chose to argue that they were concerned that a lack of minorities would result in discrimination litigation. The majority of the court stated that you couldn't deny the firefighters those spots for that reason. They state that you can't use assumed litigation as a means to deny those qualified individuals their spots for promotion.

Full ruling text:

http://big.assets.huffingtonpost.com/07-1428.pdf

Why would the ruling impact Sotomayor at all? Souter voted with the dissenters (ie, the group Sotomayor would be with). So basically she'd be with Souter... who she's replacing...

The Republicans already backed away from strong criticism of her comments, and it's certainly doubtful they'll reopen that line of attack because of one 5-4 decision. They do not want to make this about race.

They'll still release more orders this afternoon. One of them is the decision whether to hear Troy Davis' death penalty appeal. They denied an earlier petition, so I'm not expecting them to hear this one, but there's always hope.

Having read the decisions:

The majority opinion goes out of its way to avoid criticizing the 2nd circuit's decision, and isn't even very critical of the lower district court opinion. Instead, Kennedy writes that it is up to SCOTUS to help guide lower courts in situations like this. Ginsburg's dissent also notes that the 2nd circuit ruling was in line with prior 2nd circuit precedent.

However, Alito's concurring opinion is very critical of the 2nd circuit and the district court, and also goes into some pretty weird areas where he blames it on an Al Sharpton-like pastor that has close ties to the mayor. It is notable that Kennedy and Roberts refused to join this opinion.

Hearings begin today. I'm sure there will be plenty of live feeds available.

Hearings start today.

IMHO, should be pretty boring. The extreme elements of both parties will use the opportunity to give some stump speeches about pet issues like race and abortion. She will have been coached well and won't give a straight answer to anything. Otherwise, she will accord herself well. Any senator who needs to stay on the good side of Hispanic voters will pull his/her punches. A few senators who do not will use the opportunity to try and revisit some culture war issues. And she will be confirmed--I'm guessing 70-30. I think that the GOP leadership won't want to have a vote that lets the Dems spin it going forward as "the GOP hates women and Hispanics."

Personally, since I care most about criminal defense issues, I am not that happy with the pick. I think that she will be a bit to the right of Souter on those issues, and I think that she will not join the, for lack of a better word, hypertechnical defendant rights opinions of Scalia et al. With a democratic president and senate, I was, personally, hoping for better. But, whatever. She's qualified, and she will be a fine justice.

I predict many questions about specific cases where her answers would violate judicial ethics. When she refuses to answer, she will be accused of dodging the questions. Whatever, she's clearly qualified, and any Republican has to admit that, so voting against her would be purely ideological.

I agree with you, but let's remember, no one expected Souter to be so supportive of defendant rights. Sotomayr is certainly to the left of what Souter was expected to be. At the very least, I think she will be willing to work with the liberal justices more, and at worst will be watering down some of their opinions instead of joining the conservatives.

I'm sick of the talking point that someone being a judge is akin to being a sports referee or umpire.

It's just an annoying song and dance. She isn't going to say anything crazy and it's mostly grandstanding for politicians to get their 10 second soundbyte on the cable news networks. Democrats will vote for her and there aren't enough dumb Republicans to fight the first hispanic nominee.

Like Obama's votes against confirming Alito and Roberts?

Probably, although on the whole she's probably more towards then center than either Roberts (maybe) or Alito (definitely).

I think that definitely depends on where you define "center". :)

Don't you think it's a little tough for a black man to vote for a strict constructionist considering our history?

Yep, because as I said earlier:

Front Office Football Central - View Single Post - POL: Alito Debate


But nice try Cam. You almost had me!

Um, no. It's not like constructionists believe the 14th Amendment is somehow invalid.

Of course, in a world where Kennedy is considered a centrist (or even leftist) partly because he wrote an opinion saying you can't put gays in jail for having sex in their own home, I would say the definition of the center is pretty screwed up.

sounds like the same as my disappointment when the last guy wouldnt answer questions. I imagine I will be equally disappointed when she doesnt and people will just tell me this is par for the course. I think it sucks and I hope she answers questions but I doubt she will. I think perhaps everyone on the committee should vote against her everytime she refuses to answer a question. That'd be nice.

Oh drat! I was ----><---- this close to actually winning an argument on the internet. And I would've gotten away with it if it hadn't been for meddling ability to search the archives!

:)

I wasn't trying to "get you". It was an actual question. Nice job at avoiding answering it though!

So, basically, it's just like any other nomination?

SI

How did I avoid answering it? You asked the question and I said "yep", and showed a link from when I said that in the past. You didn't have to search the archives for that, it was in the very post you just responded to.

Sorry, I missed the "yep" amidst the condescension and smuggery.

Exactly.

And I agree with her (and any other justices) decision not to answer questions that could prejudice future cases. Both parties have made a mockery of the process.

But they didn't believe that blacks had any rights before it.

Serious question. Will any decision the Supreme Court makes in the coming years have any impact on our daily lives?

Then they're not really constructionists. I mean, do you think the authors of the 14th intended for it to be used for desegregation of schools, for interracial marriage? If not, then a constructionist would have to argue that Brown and Loving should be overturned.

Are you trying to tell me that under the Constitution before the 14th Amendment blacks did have rights? I would hope that any judge nominated to the Supreme Court, regardless of their judicial philosophy, would at least have a solid grasp of history... including our flaws.

I think you're getting a little confused. Constructionism just means that the judge relies on the written text. There's nothing in the text of the 14th Amendment that would preclude a constructionist judge reaching the majority opinion in either Brown or Loving.

No they didn't. And strict constructionist judges helped maintain that status quo against civil rights before the 14th amendment.

So did the Democrat Party, both before and after the passage of the 14th amendment. Are you saying that a black man should have a difficult time voting for Democrats now too?

Fixed.

You know, a wise Latina woman would have come up with a funnier "fix". :p

Your mixing a politician and an ideology. The ideologies of people like Thomas, Alito, and Scalia are the same as they were 100 years ago. Strict constructionists.

Badda bing.

I think it depends who you are. For instance, I'll bet that Kelo impacted the daily lives of at least a few people.

I think we (by "we" I mean FOFC) had a discussion on this and someone linked to a supposed historical ranking of the ideology of SC Justices that showed that the Supreme Court is skewed right and Souter, Ginsberg and Breyer are just barely left of center with the only real "liberal" currently Stevens.

I'm not sure if this was that ranking, but it's what I found, so I'll link it and leave others more familiar with this to comment.

Of course, what people view as a "liberal" "conservative" or "centrist" justice probably varies from person to person.

Sorry Cam, but that's the way I read your question to Larry as well. It may just be me, but I think you often ask questions in a way that implies you already know the answer, and that the answer displays some hypocrisy or logical inconsistency on the part of the person of whom you are asking the question.

In general, I assume you do this somewhat involuntarily because it is the nature of your work to exist in a somewhat rhetorically combative atmosphere, and that carries over to your conversations (of a political bent, clearly) in FOFC.

It's probably why you're often on the receiving end of people who feel you've twisted their argument against them, instead of discussing an issue on consistent grounds.

And you're confusing ideology, political philosophy, and judicial interpretation.

A constructionist judge making a civil rights ruling pre-14th Amendment is going to have a very different result than a constructionist judge making a ruling post-14th Amendment... because the post-14th Amendment judge is going to closely examine the text of the 14th Amendment in making their decision.

This is one reason why Hugo Black, a strict constructionist, voted in favor of both Brown v. Board of Education and Loving v. Virginia.

With that in mind, how is supporting a constructionist judge in 2009 any harder than supporting the Democrat Party in 2009?

From reading your posts, it sounds to me like you're trying to make a half-assed inference that strict constructionists are racist. If you're going to make that argument, at least have the balls to say what you mean.

So how could I have phrased "Like Obama voted against Roberts and Alito?" less combatively?


Nah. I think it's because they get annoyed that I'm right. :p

I ain't even a registered Democrat...and everytime I see somebody do that, I take the Republican Party and the conservative "movement" in general just a little less seriously.

Expected better from you, Cam.

Strict constructionist is not simply looking at the text and basing a decision on the words in the text. It's much more complicated than that. Three's been thousands of pages of academic literature published on the 14th Amendment vis-a-vis the "strict constructionist" view and even what it means to be a strict constructionist. In fact, even calling a jurist "a strict constructionist" is an oversimplification of the debate, because there isn't one accepted definition of strict constructionism or even if it's possible to be a strict constructionist. There is no justice on the current court that is a strict constructionist or even a constructionist. I know many argue Antonin Scalia--but there is a difference between strict constructionist and original intent.

Constructionist or strict constructionist is now becoming a misused pop culture term like "judicial activist." Russ Feingold had it right -- judicial activism is now thrown around by people on both sides of the ideological spectrum when it involves a case where the person disagrees with the outcome.

I was trying to point out how ridiculous RainMaker's argument was by making an equally absurd point. Sorry if you expected better.

Not saying that they are racist at all, although using Hugo Black as your example is a bit ironic considering he was a member of the KKK.

You are correct that things have changed since the 14th Amendment. But before that, a constructionist judge would have a much tougher time considering a black "equal" than a more liberal judge. Constructionist judges also are not supportive of civil rights issues such as the Voting Rights Act or Affirmative Action.

You can go one step further and swap blacks with gays in today's culture. If a case for gay marriage reached the Supreme Court, a conservative judge would rule against allowing it. I just find it much tougher for a minority or even a woman who has had to fight for civil rights to side with a Judge who has an ideology that isn't favorable to it.

Well yes, but I didn't really feel like getting into a really long debate over the differences between constructionism, textualism, or originalism. I figured I'd just use the language RainMaker was comfortable with to keep the discussion as focused as it could be.

Look at the bolded text, Cam. It's not the absurdity of your point that makes it difficult for me to take you seriously.

I'm sure it did and I'm sure every ruling impacts someone. But for the most part, I doubt many of us on the board have or will be impacted by the ruling. It's going to be an extremely small percent of the population that deals with the consequences.

I guess my point is that we aren't in line for many landmark rulings that will change the entire course of the country and society in general. Even something as hot button as gay marriage or abortion doesn't pose the same impact that civil rights rulings did. I just don't see the course of American history changing over a couple judges on the Supreme Court anymore.

If constructionists are blinded by their ideology, as you say they are, then how could Justice Black have reached the conclusion he did in either Loving or Brown?

Constructionist is not a synonym for conservative, nor is it an antonym for liberal. That's part of your problem right there. And as I keep trying to explain, ideology and judicial philosophy are two different things.

Not to get all Flasch-y on you, but if you're going to start throwing out statements like "constructionist judges are not supportive of civil rights issues such as the Voting Rights Act or affirmative action", I'd like some citations from these judges.

You're also aware, I'm sure, that there are plenty of non-constructionist legal arguments against affirming a right to gay marriage through the courts, rather than the legislature or through a constitutional amendment.... unless you for some reason think that the California Supreme Court and the NY Court of Appeals are made up of strict constructionists.

Honestly, I didn't even realize I typed that. Democratic party. Better?

dola... I do believe that people should show their political opposition enough respect to refer to their party by its proper name. I'm still having trouble figuring out what's so demeaning about the phrase "Democrat Party" as opposed to "Democratic Party". Don't we call individuals "Democrats" and not "Democratics"?

Just to be perfectly clear: I'm not flaming, using sarcasm, or any other verbal jousting tool. I'm just a little confused at the vehement reaction to a missing "ic".

Because those that do it purposely do it solely to piss off members of the Democratic party. It isn't the word per se, it's the intended asshatish behavior that's the problem. It doesn't bother me, as I think it's better to ignore such childish behavior, but that doesn't make it any less childish.

Got it. That wasn't my intent, and I apologize.

I wonder what you would have gotten if you used my preferred spelling of Demoncrat? :D

Like I said, Black is a horrible case to study here. He was in the KKK in his early years and many believe he went outside his judicial beliefs on civil rights cases as to not look like a racist.

The "strict constructionist" view of Plessy vs Ferguson was that seperate but equal didn't violate the 14th amendment.

The word "strict constructionist" does get thrown around in the wrong way, but that's what conservatives want out of a judge. They believe that judges like Scalia, Thomas, Roberts, and Alito are constructionists (whether that term is right or wrong is another matter). Thomas doesn't believe in the Voting Rights Act and Roberts has tried to change the burden of proof. Others like Scalia and Alito have spoken out against parts of it.

Almost all those guys have spoken out against affirmative action as well. Scalia wrote a wild dissent on the denial of review regarding Denver's Affirmative Action program. He has also given many speeches on the topic which have caused massive protests. Alito has material from the 80's too.

Are you really telling me that people on the right are not against affirmative action? Are you trying to say that a black man should feel comfortable voting in someone like Alito and Roberts?

Ok, I had never heard the "Democrat" party thing. I guess I don't see the distinction- what the difference?

This isn't Fox News putting a "D" next to Mark Sanford or continually using "Barack Hussein Obama".

SI

Even if many people believe that, it still doesn't take away from the fact that a strict constructionist used a strict constructionist argument to vote in favor of cases like Brown and Loving.


And in my opinion, the dissent in Plessy v. Ferguson was much more "constructionist" than the majority opinion. The majority had to discount the text of the 14th Amendment, which spoke simply of "equal protection of the laws" as somehow protecting political equality without protecting social equality.

The dissent (by another former KKK-er, oddly enough), said (in part):
But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.

Nope. I don't even know where this comes from, unless you're once again using the words constructionist/conservative/right incorrectly and interchangeably. I will say that opposition to affirmative action can be found among those on the left as well, and it isn't limited only to those who are white.

Any reason you decided not to include Clarence Thomas in this sentence? Did it look absurd even to you? Yes, I am absolutely saying that a black man (or woman) for that matter can feel comfortable voting for someone like Alito or Roberts. I think I've been saying that for at least a page now.

Would you think less of a black person who supported Roberts or Alito?

Dola:

The reason I substituted the word "can" for "should" is because it's pretty damned ridiculous to think that you can sum up an entire person's political philosophy based on the color of their skin. Whether or not they "should" feel comfortable depends far less on them being black than on their political philosophy in general. I hope you'll agree that "can" is a better word to use.

But, Hugo Black did not use a strict constructionist argument for his vote in Brown. If you look at interviews that he gave later on, as well as his private papers, it was based on . . . empathy. He has stated countless times that he grew up in the South and he knew that it was wrong, and it wouldn't have mattered if things were equal.

To be fair, that doesn't mean that he wasn't a strict constructionist. I just don't think Brown is a good example of that, given the circumstances under which it was written.

A better example would be Hugo Black's opinion in Engel v. Vitale, 370 U.S. 421---which invalidated a school prayer. Black's view was "no law" means "no law." If a policy promoted one religion, a few religions, or a family of religions, it would still be unconstitutional.

I will give you credit, though, for mentioning Hugo Black. A lot of conservatives tend to stay away from him, because most conservatives disagree with the outcome in a lot of his decisions.

One more thing--I'm kind of surprised that you didn't know the "democrat" party slam that many republicans started pulling a few months ago. It does undermine the credibility of your post. Not that my opinion matters much around here (since I'm a lurker for the most part), but I find many of your arguments "persuasive" in the sense that it won't necessarily make me change my mind, but it sound and well-reasoned. In fact, one of the arguments you made in the Heller discussion convinced me on the Second Amendment "right to bear arms," not in a textual or strict constructionist sense, but from John Marshall Harlan's "implicit in the concept of ordered liberty" approach. (And, for the record, I am a constitutional law geek and, a long time ago, spent a lot of time researching various issues for an article that included reviewing many justices private papers at the Library of Congress).

He also sided against the Japanese in regards to the internment camps.

I don't see it that way at all. The majority opinion stated that there was nothing in the 14th Amendment that extended equality into social areas. Isn't that the same argument being used on the right for not allowing gay marriage?


That's a rather liberal view he takes. That decision would be considered liberal activism by today's standards. Like I said above, you could swap this out with gay marriage and make the same argument. Harlan is saying that all citizens are equal before the law but the other side is saying that there is nothing in the constitution that says that it counts in social matters. That the states have the right to make up their own mind there.

I'm sure there are. But recent cases like Gratz vs Bollinger show that the right-leaning judges are much more likely to side against affirmative action. Considering Roberts and Alito are against it as well, would you really expect a black man who is schooled in constitutional law to vote for them? This all started because of a comment about Obama voting against those two. I would find it wrong for him to vote for them if his beliefs are strong.

Thomas is a little farther to the right than anyone else on the court. I mean this is a black man who dissented to the latest Voting Rights Act decision. It's safe to say he has a much different view of race relations in this country than most blacks.

Thanks Jon. I honestly don't pay much attention to the partisan bickering on both sides these days... with the exception of diving into the POL threads here at FOFC every now and then. :)

Most of my reading is news, not opinion, and I don't watch or listen to political talk shows (don't get me started on the Fox News lineup). The only blogs I read on a regular basis these days are Instapundit, the Volokh Conspiracy, various gun blogs, and the Campaign Spot. None of them really engage in the "nyah-nyah" back-and-forth name calling, which is why I've missed it.

I will say that after reading four years of "Rethuglican" comments, I don't really get the big deal about Democrat versus Democratic, but since I wasn't trying to piss someone off I don't mind apologizing. :)

When it comes to Engle v. Vitale, I don't have a problem with Black's reasoning, though I wonder what he'd think about how far we've taken the issue of banning prayer in school.

Anyway, thanks for the kind words and the food for thought. I'm going to do some more reading on Brown v. Board of Education after I get off the air tonight.

For what it's worth, I had no idea that Democrat was seen as such a bad word when referring to the party.

I've usually seen that as DemonRAT while browsing the Free Republic threads in horror. ;)

Sure.


'Democratic,' I would suggest, stands for the principles to which the party claims to adhere. Sorta like Christian as an adherent, and Christianity as the collective set of principles, y'dig? Would you shorten the reference to the religion because we call its adherents Christian? Or, heck - would it be legitimate to refer to, as a collective, the "Jew people" because we call an individual of that faith a Jew? Why call them the "Jewish people" and waste a perfectly good 'ish,' am I right?

Not to inject religion into a perfectly good political flamewar. Just saying, there are other examples of the principle I'm talking about here.


As someone else pointed out, it's that most of the people who do that (and, to be honest, use that precise reasoning behind it), are doing it with asshattery aforethought and using that as kind of a "what, what'd I do?!" injured innocence defense.

Frequently - and not always, I realize this - the people who play the "We call them Democrats, not Democratics" card are the same people who use the pejorative shorthand "libs" in place of "liberals" to describe those of a particular ideology. It's as though a dismissive diminishment of the name automatically equals a diminishment of the principles they stand for.

It isn't so much a vehement response - I'm not stamping my feet and demanding you refer to them the 'right' way. Just pointing out that, for me, the use of 'Democrat Party' has the effect of causing me to take the Republican Party less seriously as a political entity. A little more on why that is in a bit.

But first, I'll take in good faith that you didn't mean it that way, and for anybody else who shares your honest curiosity as to 'why do we call the party one thing and the individuals another?' we'll have a history lesson - once upon a time, back in the early 1800s, there existed a party known as the Democratic-Republican Party. There was a falling-out after Monroe's Presidency, and Andrew Jackson took with him a large part of that group to form the Democratic Party.

Now, I'm not the most astute student of politics, but I would suggest that the name choice was a deliberate one, especially as the Democratic-Republican Party ended up disbanding much as the Federalist Party had before it. I would suggest that it was meant to be a familiar name to people who had been Democratic-Republicans before we went from Federalist/Democratic-Republicans to Democrats/Whigs (to, later, Democrats/Republicans). Sort of a security blanket. "Your party may not exist in body anymore, but in spirit, it lives on. Why don't you caucus with us?"

So that's where the name comes from. That's why, even though we refer to an individual as a Democrat, the proper reference for the party, if one is being polite or at least not deliberately antagonistic, would be the Democratic Party.

Jon's usage of Demoncrats, eh, that's also a pejorative, but at least it doesn't try to hide behind 'what? what am I doing wrong?' the way so many of those who insist upon 'Democrat Party' do. Basically, if you're going to belittle the other side, have the cojones to do it overtly.

Rush and Hannity use 'Democrat Party' in that way, even if they trot out the same 'but, but, we call the individuals Democrats' line. It's petty, childish, and smacks of the kid who wants to antagonize his brother but doesn't dare do it openly in case mom or dad threatens to turn the car around. Which, whatever, fine - but that's why I have a tough time taking seriously folks who use that turn of phrase.

And for what it's worth, if the Democrats were to try the same thing ("why do we call it the Republican Party? We live in a Republic, not a Republican!") I'd have a tough time taking them seriously, too. If it's absolutely imperative that I vote for one group of folks over another, name-calling, overt or subtle, isn't going to impress me. What you intend to do about the Momentous Issues That Make My Vote For You Imperative, on the other hand, that I'll listen to. I won't necessarily agree with it, but I'll lend a civil ear to a civil tongue.

Trying to hang your opponent with a pejorative, diminutive name just doesn't suggest to me that the person or group trying to push that name is taking those issues seriously at all. Those are playground games. If the population is stupid enough to vote for you because of how you refer to your opponent's party, I got news for you - they're stupid enough to vote for the other guys for far more asinine reasons. Is that really the sort of political engagement you want to encourage?

/rant

:)

Wikipedia actually has a pretty good writeup on the history of the whole "Democrat" thing. I had no idea it went back as far as it did. I thought it was largely a product of 2002-2006.

No way that's your preferred spelling. It's not nearly pejorative enough.

You mean like calling it "the Christian faith" ;)

All Things Considered had a funny interview with Senator Grassley last night. Grassley started off by saying he and other Republicans were concerned about the empathy thing, to which Robert Siegel responded: "What do we want? Callous judges who just disregard the impact of the law on people?"

Following-up, he also quoted Alito from his own nomination hearing: "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 in to account." Siegel suggested that by Grassley's criteria, he shouldn't have voted for Alito.

Anyway, the end of the interview had Grassley sort of meekly saying that Sotomayor was positive and that if the things she said are merely political statements, and not reflected in how she works from the bench, he'll vote for her. Which I wasn't suggesting.

NPR won't have a transcript for a while, so there's just the audio clip.

So far, the most notable aspects of the hearings so far are:

1. Exactly how much of an idiot Jeff Sessions is making himself look

2. Lindsay Graham being the most "reality-based" senator in his comments so far, by saying that unless Sotomayor melts down, she'll be confirmed, because elections matter.

Honorable mention should go to Coburn saying she'll have "some splaining to do."

I'm so old I remember when the Republicans were trying to get a lock on a Latino majority.

Yeah, it would appear that Coburn is just using this opportunity to give a national platform for Pro-Life arguments, even going so far as saying "you don't have to answer this" to her.


Wasn't that, like, 4 years ago? :D

I have not read this yet, but here's a link to a new article about Judicial Activism, trying to view it in an objective manner. This page is the abstract. Click on the link at the top of the page to download it.

SSRN-Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Courts of Appeals by Corey Yung

It's official: Senate Approves Sotomayor to Supreme Court - NYTimes.com