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  BREAKING: MSNBC reports Sotomayor next SCOTUS justice (search mode)
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Author Topic: BREAKING: MSNBC reports Sotomayor next SCOTUS justice  (Read 20239 times)
Sam Spade
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« on: May 26, 2009, 09:19:14 am »

Not terribly surprised, but then again who is.

I don't see how she doesn't get confirmed unless there's something terrible out there we're missing.  The stuff that's already out there is simply too weak.

My general impression having read her past 2nd circuit opinions is that she is no great intellect.  I found her writing and reasoning to be quite pedestrian, not unlike Alito, now that I think about it.
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Sam Spade
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« Reply #1 on: May 26, 2009, 09:37:03 am »

Republicans plan to pound a videotape in which Sotomayor said on a Duke University Law School panel in 2005 that the “court of appeals is where policy is made”

“And I know,” she added, “I know this is on tape, and I should never say that because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m not advocating it. I’m — you know.”

Of the four widely reported finalists, Sotomayor was the one Republicans said they would complain most loudly about, and conservative legal groups attacked within minutes after Obama’s selection was reported.

Read more: "Breaking: Obama nominates Sonia Sotomayor - Mike Allen and Jonathan Martin - POLITICO.com" - http://www.politico.com/news/stories/0509/22962_Page2.html#ixzz0Gcgpl6SN&A


Hopefully this won't end up being like Caroline Kennedy.  I hope she'll have a better explanation than that...

She'll get coached to or come up with a better explanation (even though I agree the answer given there is terrible and once again shows signs of a pedestrian intellect). 

That is far from enough however.
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Sam Spade
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« Reply #2 on: May 26, 2009, 12:22:04 pm »

I'm sure Obama's team has already found an explanation for that. It's a pretty easy find.

FoxNews doesn't seem to be hitting back to hard just yet. I imagine by the time we see BillO or Hanitty tonight we can expect YouTube videos, angry rants and the shaping of the conservative message.

Of course, I spoke too soon. Already pulled a quote where Sotomayor says a Hispanic woman would make better decisions than a white male.

Actually there is no need for elaborate explanation.
Just read Anonymous Liberal's post where he explains what Sotomayor meant:

http://www.anonymousliberal.com/2009/05/more-republican-judicial-clowning.html

(sighs) This is what now qualifies as a big-time litigator in a large law firm.  Roll Eyes

Look, both this genius and the soon-to-be SC justice are correct in a certain sense, but fail to appreciate the nuance between a corollary function and the necessary function of an Appeals court judge.  Or at least that's what her statement originally failed to acknowledge.

The necessary function of an Appeals court judge is to review rulings and decisions mainly made by District Courts (and some other courts in certain situations, including bankruptcy courts, tax courts, even occasionally magistrate courts if the issue is a real live one, etc.).  In reviewing these decisions, using whatever standard of review is applicable (usually under SC precedent), the Appeals court makes a decision applying SC precedent strictly to the specific factual and legal issues at hand.  In other words, at a literal level, the Appeals Court is merely empowered to the function to apply SC precedent in review of District Court rulings and decisions.

Now, as one could easily figure out, the situations where SC precedent and District Court rulings, decisions, etc. overlap are not that common (though more common than you might think).  Henceforth, any decision where the application of SC precedent is not on point leaves open the use of policy to make a judgment (in addition to straightforward applications of law - such as with statutes).  Invariably, all these decisions which do not "merely quote SC precedent and move along" form their own separate universe of interpretation within that Circuit, but fundamentally and most importantly at the theoretical level, all of these decisions are made still strictly follow SC precedent.  This occurs even when different Circuits reach different conclusions (based on different policy) regarding a legal issue.

Therefore, the use of policy in interpreting SC precedent not on point (not to mention Circuit precedent, but it presents less issues) is a function of an Appeals Court judge but it is a corollary function which derives from the necessary and basic function of an Appeals Court judge, as stated above.
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Sam Spade
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« Reply #3 on: May 26, 2009, 10:36:07 pm »

The firefighters case is probably going to be overturned because of Kennedy, I suspect.  So her inclusion on the court would be irrelevant in that matter.

Still trying to figure out what race has to do with any of this.  She's qualified to be an SC justice.  I've already given my opinion as to what her impact will be.  That I feel fairly confident about.
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Sam Spade
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« Reply #4 on: May 26, 2009, 11:09:28 pm »

The firefighters case is probably going to be overturned because of Kennedy, I suspect.  So her inclusion on the court would be irrelevant in that matter.

Still trying to figure out what race has to do with any of this.  She's qualified to be an SC justice.  I've already given my opinion as to what her impact will be.  That I feel fairly confident about.

I suspect this is your opinion summarized?

David Frum is an idiot.  I believe I have given my opinion on Sotomayor in other posts.  I don't know whether to believe Rosen's piece or not, so my opinion is not based on that.  One thing is also for sure - we're sadly not going to get any reexamination of eminent domain precedent with Sotomayor involved.

Honestly, unless I missed someone, I didn't believe that any of the possible appointees had enough power to overcome Roberts' influence of Kennedy.  You have to remember that where Kennedy is often the most agreeable to listening to the liberal wing's point of view is in terms of individual rights.  But he is still fundamentally a conservative, especially on the issues of race and abortion, in which I don't believe his opinions have changed much in the past 20 years, even when Scalia was hectoring him and when O'Connor was there for possible influence otherwise. 

Moreover, the individual rights support where good in some areas for the left (i.e. gay rights) is not good in other areas (i.e. 2nd Amendment, campaign contributions).

Furthermore, I disagree with Frum in that I think Kennedy has moved back to the right a good deal since Roberts got on the Court.  I think that key to that is that Roberts has really toned down Scalia's opinions.  During Rehnquist's reign, you would see Scalia often get assigned an opinion where he would write something extreme and never get the 5 votes necessary because Kennedy would revolt on something.  I'm seeing a lot, lot less of that now.

While we're talking about this, it is kind of amusing to see the left (and right too) in complete ignorance of the most important shift in the Court that's occurred in the last five years (which was on display in another opinion today) or so.  Scalia is basically, with the help of the Stevens/Ginsburg/Souter/Thomas alliance on one hand and the traditional right vs. left alliance on another, remaking and rewriting a lot of the criminal procedure constitutional interpretation in his own image.

I don't have any problems with this, since a lot of the post-Warren court jurisprudence in criminal procedure is confusing, to say the least (and I think Scalia has the best ideas).  But it is kind of amazing that it gets no publicity.
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Sam Spade
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« Reply #5 on: May 26, 2009, 11:12:18 pm »

The firefighters case is probably going to be overturned because of Kennedy, I suspect.  So her inclusion on the court would be irrelevant in that matter.

Still trying to figure out what race has to do with any of this.  She's qualified to be an SC justice.  I've already given my opinion as to what her impact will be.  That I feel fairly confident about.

Erwin Chemerinsky disagrees with you on the persuasiveness and quality of writing thing: http://blogs.tnr.com/tnr/blogs/the_plank/archive/2009/05/26/why-sotomayor-is-such-a-good-pick.aspx

I guess we'll find out soon enough.

Chemerinsky writes a good Con Law hornbook information-wise, but quite frankly I found his writing style to be boring and academic.

If I am so picky about this area, it is because I consider legal persuasiveness to be one of the strong points in my legal writing. (and am not the only one).  Smiley
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