Balkinization: Is Candor From Judges Dead?

Comments:

Here is a comment made by me earlier today at Brian's 5/29/09 post "Punishing Judge Sotomayor for her candor":

"David Stras's post "A Rejoinder on Candor" does not permit comments but since his post relates to Brian's post, a comment may be appropriate.

Stras refers to the "candor" of Robert Bork. I first became aware of Bork in the late 1970s when I read - and frequently reread - his "The Antitrust Paradox." At the time my practice had developed to the point of addressing antitrust issues for clients. Bork's book was a good guide to understanding antitrust laws, which he skewered. SCOTUS over the years since its publication in 1978 has adopted some of Bork's challenges. With the Reagan years, the impact of antitrust laws diminished greatly, perhaps reducing the ranks of the antitrust bar significantly. Now with Obama as President, there may be a revival of interest in enforcement of antitrust laws (which may provide much needed work for attorneys).

While I have not gone back to review Bork's appearances before the Senate Judiciary Committee, I do recall that "The Antitrust Paradox" was a significant issue. Was this "candor" on Bork's part? In his book Bork was challenging SCOTUS antitrust decisions. Bork's book was a scholarly work. The Committee had to be concerned with the direction Bork might take the Court if confirmed. Bork had an extensive paper trail on how he might vote if confirmed with this book. Perhaps rather than "candor" Bork was faced with the paradox of seeking appointment so he might change the direction of the Court.

With respect to Sotomayor, she did not have a similar paper trail before her confirmations as a Federal District Court Judge and as a Circuit Court of Appeals Judge. Sotomayor has rendered many opinions in her judicial capacities. That's the true paper trail for the Committee to examine in considering her appointment. As for a sentence or two in her speeches off the court, context must be kept in mind. Those few sentences do not suggest that she, as a Latina, is prepared to change the direction of the Court to the extent that Bork would have.

By the Bybee, might the relaxation of antitrust laws beginning with the Reagan years, as influenced by Bork, had a tad of responsibility for the financial and banking crises developed during the Bush/Cheney years (as well as the S & L failures in Reagan's years)?
# posted by Blogger Shag from Brookline : 8:51 AM"

# posted by

Shag from Brookline : 11:32 AM

I'm tired of hearing about Sotomayor already. Professor Tamanaha, I read your download on "The Failure of Law and Development" and find that much more enlightening. Is there some reason you disallowed comments on that thread? Have you heard of NGO and churches like Saddleback that send members who are prosecutors, investigators, judges, and attorneys to developing countries?

http://www.ijm.org/getinvolved/churches-engage

# posted by

Charles : 2:08 PM

Then Judge Roberts analogy of a judge to an umpire calling "balls and strikes" according to the rules of baseball is apt. To take Roberts' analogy one step further, the leeway a general substantive law may provide a judge is analogous to an umpire's discretion in determining the size of the strike zone at the edges. However, the rule defining the strike zone is generally observed by all umpires if they wish to keep their jobs. Umpires and judges who note this reality are not punished for their candor.

Judge Sotomayor's legal realism is fundamentally different and is analogous to an umpire changing the rule defining the strike zone. In her 1996 speech to Suffolk law students, Judge Sotomayor set out her legal realism at length. (“Returning Majesty to the Law and Politics: A Modern Approach” (30 Suffolk U.L. Rev. 35 (1996)). Sotomayor expressly distinguished between the situations you cite concerning judges having different takes on the law in close cases or exercising discretion when applying general law and her argument that “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”

Consequently, Sotomayor is not being punished for her candor in admitting that judges exercise discretion at the margins under the law, but rather for arguing in 1996 that judges can and should "push[] the law in a new direction" and then similarly instructing Duke law students in 2006 that the courts are "where policy is made."

Sotomayor is further being held to task for arguing in 2001 that judges should abandon any pretense of impartiality and apply their race and gender based life experiences when they "push[] the law in a new direction." In short, Sotomayor is admitting that she cannot abide by her oath as a Supreme Court Justice.

Thus, the public is well served by Sotomayor's unusual candor concerning liberal judicial philosophy. Unlike the stealth nominee she has been nominated to replace, the President and Senate have no excuse for claiming they did not know what they would get with Sotomayor, and they should be themselves held to task come election time if Sotomayor pushes the law in a new direction against the wishes of the voters.

# posted by

Bart DePalma : 2:28 PM

Our resident LLB* puts on his jockstrap to regurgitate then Judge Roberts' umpire, balls and strikes schtick. Consider the virtually instantaneous decisions made by an umpire in the course of the game and contrast it with the appellate judge making deliberate decisions with much hindsight months, even years, later, and even then with the benefit of briefs, clerks up the wazoo, oral arguments, discussions at conferences with other justices, perhaps secret conferences with selected justices, before making his decision. Balls! That's not like calling balls and strikes. With a real umpire, his/her decision might be quickly demonstrated by video to have been in error, whereas it can take decades for a bad SCOTUS decision to be exposed and overturned.

So our resident LLB* should retire his jockstrap and put it in with his Backpack of Lies.

*Little Lisa's bro

# posted by

Shag from Brookline : 2:55 PM

Sotomayor is further being held to task for arguing in 2001 that judges should abandon any pretense of impartiality and apply their race and gender based life experiences when they "push[] the law in a new direction."

Which is passing strange, since she hasn't said anything like that. Hallucinations are not evidence. Had she done so, then Bart here would be able to quote such, rather than making sh*te up.

As for "push[ing] the law in a new direction", I'd note that this is precisely what the RWers have been trying to do for quite some time now ... it seems that such sentiment is only objectionable when the direction is so....

Cheers,

# posted by

Arne Langsetmo : 3:50 PM

arne:

BD: Sotomayor is further being held to task for arguing in 2001 that judges should abandon any pretense of impartiality and apply their race and gender based life experiences when they "push[] the law in a new direction."

Which is passing strange, since she hasn't said anything like that...

Read her 2001 speech:

Sotomayor contrasted her views with those of fellow Second Circuit Judge Miriam Cedarbaum. Judge Cedarbaum "sees danger in presuming that judging should be gender- or anything else-based. Judge Cedarbaum believes that judges must transcend their personal sympathies and prejudices."

Sotomayor questioned whether that was possible, adding, "I wonder whether ignoring our differences as women or men color, we do a disservice both to the law and society."

""Our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that—it's an aspiration because it denies the fact that we are by our experiences making different choices than others."

# posted by

Bart DePalma : 5:05 PM

Bart,

I find your insistence that one's past experiences should not influence one's judgments inconsistent (rather hypocritical, in fact) given your oft-stated insistence that your military background is what gives you all the special knowledge and understanding you claim.

Of course, you are not a judge -- although you are certainly judgmental enough.

# posted by

C2H50H : 5:39 PM

Bart:

The part you quoted doesn't say what you say it says:

"Sotomayor is further being held to task for arguing in 2001 that judges should abandon any pretense of impartiality and apply their race and gender based life experiences when they 'push[] the law in a new direction.'"

Your hallucinations, as I said, do not count as evidence. If she said what you said she said, you should be able to quote it. Instead, you make up sh*te about what you think she said (but hallucinations are not admissible in court). You're doing it again. Most marked is the assertion that she said that judges "should" do [whatever it is that you said she said they should do]. That's just an out-and-out lie. Stop it, please. Be honest for once in your life ... if you can.

* * * * *

C2H5OH: Good one. Expect it to go 40,000 feet over his head. Bart is of the opinion that if he doesn't see something (or acknowledge it), it doesn't exist. Which, strangely enough, is a curious attitude for a soldier.

Cheers,

# posted by

Arne Langsetmo : 5:49 PM

C2H50H said...

Bart, I find your insistence that one's past experiences should not influence one's judgments inconsistent (rather hypocritical, in fact) given your oft-stated insistence that your military background is what gives you all the special knowledge and understanding you claim.

My military experience qualifies me to be a witness concerning those things of which I have personal knowledge.

To make a comparable argument to that given by Sotomayor in 2001, I would need to contend that the judiciary needs more military veterans because we enjoy a richer life experience than benighted civilians like Sotomayor and this experience makes us better jurists that Sotomayor.

Even this Starship Trooper-esque contention does not fully plumb the ridiculous depths of Sotomayor's argument because I would be citing experience gained from my military service rather than alleging like Sotomayor that I came by my experience simply by virtue of the melanin content of my skin and my sexual plumbing.

# posted by

Bart DePalma : 8:11 PM

The Washington Post reports that Judge Sotomayor was quite the race activist over the twenty years between starting university and ascending to the federal bench.

While attending Princeton, Sotomayor accused the University without any reported evidence of discriminating against Latinos, demanded hiring quotas and threatened to bring federal suit.

Then Sotomayor complained to Yale Law that a law firm has asked her if she herself was an affirmative action selection. It does not appear that Sotomayor caught the irony of the question given her history demanding racial preferences.

After a brief stint with the Manhattan DA, Sotomayor went to work for the Puerto Rican Defense Fund, which under her leadership successfully sued NY police and fire departments to implement the kind of racial preferences that she recently upheld in the case of Ricci v. Destefano, where a fire department denied promotion to white firefighters by trowing out a promotion test because no African American candidates passed the test.

Somehow this entire period of Sotomayor's life seems to have been air brushed out of the White House's carefully edited "compelling life story" of their Supreme Court nominee. However, the Post's reporting does give us a window into the "rich life experience" that Sotomayor claims makes her a better judge than those white guys.

# posted by

Bart DePalma : 8:43 PM

This from our resident LLB*:

" . . . and my sexual plumbing . . ."

added to his

" . . . military experience . . . "

and he's still shooting blanks.

*Little Lisa's bro

# posted by

Shag from Brookline : 9:26 PM

And if our resident LLB* were mature (assuming he was then living) when Thurgood Marshall was nominated to SCOTUS, our LLB* surely would have described Marshall as "quite the race activist." (Consider how much more extensive was Marshall's resume with NAACP than Sotomayor's with Latino organizations and causes.)

How low can our LLB* stoop or crawl? Ah, it must the the gender issue for our defender of white men, with his inner Latina screaming to emerge. Of course our resident LLB* was critical of Obama because (inter alia) he was a community organizer in Chicago involving you know what kind of people. But Obama was elected, overwhelmingly, democratically. Can our resident LLB* deny that he is a tad bigoted?

Read the entire article. Is there any suggestion in it that what Sotomayor did was improper? Our resident LLB* says:

"Then Sotomayor complained to Yale Law that a law firm has asked her if she herself was an affirmative action selection."

The article points out that the law firm apologized for its partner's conduct towards Sotomayor. Why did our resident LLB* omit this? Could this be a further demonstration that our resident LLB* is a tad bigoted?

*Little Lisa's bro

# posted by

Shag from Brookline : 9:57 PM

Oh, I forgot, wasn't Clarence Thomas disturbed when people thought he was an affirmative action beneficiary? Did our resident LLB* feel that this was unfair to Thomas?

*Little Lisa's bro

# posted by

Shag from Brookline : 10:01 PM

Bart,

What distinguishes "being a better witness" from "being better able to recognize discriminatory behavior"? Because that seems a pointless and sophist distinction.

Also, how is life experience obtained voluntarily, via, say, military service, or perhaps, growing up a white male in a two-parent home with a professional or well-to-do father who could get one into the best schools and grease the skids in one's career, better than overcoming the odds against a diabetic latina raised by a single mother in near-poverty and arriving at essentially the same position?

Because frankly, I'm more impressed with the moxy shown by the latina.

# posted by

C2H50H : 10:16 PM

Please, Bart:

Even this Starship Trooper-esque contention does not fully plumb the ridiculous depths of Sotomayor's argument ...

This is not Judge Sotomayor's argument. This is your ["straw man"] argument, Bart. So if it is "ridiculous", that's something that you will have to contend with, not her. People don't care what you think, and if they want to know what she thinks, they'll read what she says and ask her questions, not ask you. It seems only fair.

Cheers,

# posted by

Arne Langsetmo : 10:36 PM

Bart:

While attending Princeton, Sotomayor accused the University without any reported evidence of discriminating against Latinos, ....Princeton had only a few years prior first started letting women in, ferchrissake. Princeton didn't even have the Hahvajd excuse that their sister college Vassar provided for the -- umm, "needs" -- of the distaff side. Yes, Princeton was undoubtedly a most magnanimous and colourblind institution....

Cheers,

# posted by

Arne Langsetmo : 10:40 PM

Shag from Brookline:

Can our resident LLB* deny that he is a tad bigoted?

No. Not if he's honest. He's already graced these pages with his scary theories than Dem Coloureds Are Gonna Outbreed Us (ala the successor in interest to the KKK, the CCC), and even made such a point on his very own blog. He can't understand why us lib'ruls don't take alarm ... that's how clueless he is about this blatant racism....

Cheers,

# posted by

Arne Langsetmo : 10:45 PM

Today's WaPo editorial "Double Standard - Funny how the achievements on Sonia Sotomayor's resume suddenly count for so little" includes this:

"Former Bush adviser Karl Rove implicitly questioned Judge Sotomayor's intelligence, saying in an interview with PBS host Charlie Rose that 'I know lots of stupid people who went to Ivy League schools.'"

Are you thinking about whom I'm thinking Rove had in mind?

# posted by

Shag from Brookline : 5:14 AM

Just a thought:

What if the Founding Fathers had been joined by Founding Mothers in constitutional convention back in 1787? Would we be hearing all this gender crap from white men today, like Pat Buchanan who while not serving in the military like our resident LLB* continues to shoot blanks? And would white men still be trying to control women's bodies?

# posted by

Shag from Brookline : 7:40 AM

I have always been amazed how heaven does contrive
that every little boy or girl born in the world alive
will be a little liberal, or a little conservative.

Gilbert and Sullivan (approximately)

# posted by

Farris W : 7:55 AM

Shag:

Thurgood Marshall was indeed quite the race activist and ardent proponent of racial preferences while on the Court. One can only hope that a Justice Sotomayor would better observe the requirements of the Equal Protection Clause.

# posted by

Bart DePalma : 9:28 AM

C2H50H said...

Bart, What distinguishes "being a better witness" from "being better able to recognize discriminatory behavior"? Because that seems a pointless and sophist distinction.

A witness is supposed to have a point of view concerning a case, while a judge is sworn to be impartial and is duty bound to recuse herself if she cannot be impartial.

Do these basic precepts of our justice system really need to be explained?

# posted by

Bart DePalma : 9:32 AM

Here are the racist sentiments of our resident LLB*:

"Thurgood Marshall was indeed quite the race activist and ardent proponent of racial preferences while on the Court."

Beyond a tad, I would say, well beyond.

And how might Rehnquist stand up to a comparable evaluation of his racial preferences while on the Court - and before? (What was his view on Brown v. Board of Education again? And pre-appointment regarding minority voters in his home state that he challenged?)

*Little Lisa's bro

# posted by

Shag from Brookline : 9:38 AM

Shag from Brookline said...

Oh, I forgot, wasn't Clarence Thomas disturbed when people thought he was an affirmative action beneficiary? Did our resident LLB* feel that this was unfair to Thomas?

Most qualified minorities consider it an insult the be considered a beneficiary of racial preferences because racial preferences grant benefits based on the melanin content of one's skin rather than their academic qualifications.

Sotomayor most definitely and, based upon her stellar academic performance, justifiably considered being considered an affirmative action beneficiary to be insulting. The irony Sotomayor apparently did not pause to consider is why she would want to promote insulting racial preferences.

# posted by

Bart DePalma : 9:41 AM

Bart,

A witness is supposed to tell the truth, is the way I always heard it. Not shade it toward one side or the other, as you imply.

More sophism? Or is this some law school secret?

# posted by

C2H50H : 9:41 AM

Perhaps our resident LLB* could share with us his understanding of:

" . . . the requirements of the Equal Protection Clause . . . "

so that we might evaluate how he thinks Sotomayor, if confirmed, should comply with the Clause and then we can compare how the Roberts-five have applied the Clause.

*Little Lisa's bro

# posted by

Shag from Brookline : 9:45 AM

Shag from Brookline said...

Here are the racist sentiments of our resident LLB*:

"Thurgood Marshall was indeed quite the race activist and ardent proponent of racial preferences while on the Court."

Beyond a tad, I would say, well beyond.

Beyond what? Thurgood Marshall was undeniably a vociferous proponent of racial preferences.

How precisely is it racist to point out that Thurgood Marshall was a proponent of racial preferences?

And how might Rehnquist stand up to a comparable evaluation of his racial preferences while on the Court - and before?

Off hand, I do not recall. Did he ever vote in favor of racial preferences?

(What was his view on Brown v. Board of Education again?

Brown ruled against racial preferences. I have no idea what Renquist's view on Brown was. Care to enlighten us?

# posted by

Bart DePalma : 9:49 AM

Here's our resident LLB* retort on Thomas as an affirmative action baby:

"The irony Sotomayor apparently did not pause to consider is why she would want to promote insulting racial preferences."

When did Sotomayor apparently "not pause"? And what "insulting racial preferences" did she promote - and also how and when? It seems that bigots use a broad brush for this Latina who so threatens them. When white males become a minority, they should remember, their mothers will still love them. But our resident LLB* can they release his inner Latina to join the new majority.

*Little Lisa's bro

# posted by

Shag from Brookline : 9:54 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 9:54 AM

C2H50H said...

Bart, A witness is supposed to tell the truth, is the way I always heard it. Not shade it toward one side or the other, as you imply.

All people have a point of view concerning events with which they were involved.

You cannot avoid having a witness with a point of view. Getting to the truth is what cross examination is for.

However, you can avoid having a judge with a point of view by moving to recuse a judge involved in the event at issue or similar events.

# posted by

Bart DePalma : 9:56 AM

Bart,

Baloney. The witnesses are there to tell the truth, the whole truth, and nothing but the truth.

It's the lawyer's job to be an advocate.

Is it really necessary to explain "these basic precepts of our justice system"?

Don't you see that you are doing exactly what you accuse Sotomayor of doing, of explaining to us how, although in theory, the law is supposed to operate one way, it actually operates in another?

Man, what a hypocrite.

It's been interesting, and rather amusing. See you around.

# posted by

C2H50H : 10:02 AM

This reference by me:

"Beyond a tad, I would say, well beyond."

was referring back to the "racial sentiments of our resident LLB*" - not Thurgood Marshall - at the beginning of my sentence.

As to Rehnquist on Brown, wasn't he clerking at SCOTUS at the time and didn't he prepare a memo to his Justice stating his opinion that Plessey was correctly decided? By the Bybee, his Justice ignored him since the decision was unanimous.

I'll let others track down Rehnquist's actions in challenging minority voters as they tried to vote. Let's stretch this out a bit.

*Little Lisa's bro

# posted by

Shag from Brookline : 10:04 AM

C2H50H said...

Bart, Baloney. The witnesses are there to tell the truth, the whole truth, and nothing but the truth.

Think about this for a second or two. If all witnesses had perfect recall without the filter of their points of view and told the objective truth, there would be no need for trials nevertheless cross examination. The facts would be undisputed and the courts would grant summary judgments.

The reality is that even witnesses who think they are telling the truth, will give imperfect testimony because of their differing points of view. Furthermore, nearly every case will have one or more witnesses who are knowingly lying or shading the truth. (Think Bill Clinton). This is why we have trials and cross examination.

# posted by

Bart DePalma : 11:36 AM

Thurgood Marshall was indeed quite the race activist and ardent proponent of racial preferences while on the Court. One can only hope that a Justice Sotomayor would better observe the requirements of the Equal Protection Clause.

Without Marshall's racial activism, the Equal Protection Clause would still be the Plessy "Separate But 'Equal' Protection Clause".

Of course, it goes without saying that our "racism" expert here, Bart, disagrees with Brown II ... in part perhaps because he's so clueless on EP law that he doesn't even know what the holding in Brown II was....

Sadly, this demostrated profound ignerrence on his part will not get him to shut up.

Cheers,

# posted by

Arne Langsetmo : 11:43 AM

Shag from Brookline said...

To the extent that Renquist affirmatively defended Plessy (as opposed to simply drafting a memo at his Justice's request to identify support for his Justice's posiition) or any other part of the Jim Crow system of racial preferences, then he supported racial preferences as did Marshall.

Before you go off attempting to distinguish good racial preferences from bad, there is no acceptable form of racial discrimination - none. Racial discrimination is malum in se for which there is no legitimate justification.

If you disagree, then think twice before you call anyone else a racist.

# posted by

Bart DePalma : 11:44 AM

"Racial discrimination is malum in se for which there is no legitimate justification."

-- Stephen Colbe... -- umm, sorry, that was "Bart"

Which is why Bart approvingly links to Mark Steyn on his own blog page, bemoaning the fact that Dem Coloureds Are Outbreeding Us.

Yessiree, "Bart" doesn't see race. Nope. Not at all.

Cheers,

# posted by

Arne Langsetmo : 12:08 PM

{Shag from Brookline]: (What was his view on Brown v. Board of Education again?)

[Bart]: Brown ruled against racial preferences. I have no idea what Renquist's view on Brown was. Care to enlighten us?

"What do you mean 'we', white man?"

You know, Bart, you wouldn't look such a clueless berk on EP law and segregation if you bothered to read Richard Kluger's excellent book, "Simple Justice". But if such intellectual endeavours are beyond you, even Google will show material on Rehnquists' dishonesty (or shall we say "perjury"?) concerning the Brown case.

I appreciate your asking for information, Bart. However, I'd point out that this has been pointed out to you before (including an admonition to read "Simple Justice"), so I'm not too sanguine that this information will actually be put to productive use this time around either.

Cheers,

# posted by

Arne Langsetmo : 12:10 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 12:36 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 12:37 PM

At least Bart"Buster" isn't posting any more.

# posted by

Charles : 1:08 PM

"Western Civilization in the EU is Facing the Very Real Possibility of Cultural Marginalization and Replacement with Sharia Law and Islamic Social Norms. America may be The Only Major Nation Left Following Western Civilization®.

This is not a racial argument along the lines of Sotomayor's wise Latina's make better judges than white males contention."

Translated from BartSpeak™ into English:

"I would hope that a wise white Anglo-Saxon Protestant with the richness of his 'Merkun hot-dog eating experience would more often than not reach a better conclusion than a Muslim darkie Terra-Ist Who's Gonna Kill Us All who's never been to a tailgate party...."

The sad thing is that Bart is not multilingual.

Cheers,

# posted by

Arne Langsetmo : 1:19 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 1:22 PM

My post to which you linked offered evidence that native American liberals as similarly dying off.

Liberalism is genetic. Who wouldda thunk it?

I do hear tell that "three generations of imbeciles is enough". But that was overturned. Thus, Bart....

Cheers,

# posted by

Arne Langsetmo : 1:22 PM

Our resident LLB*'s parenthetical defense of Rehnquist"'s Brown memo for Justice Jackson:

" . . . (as opposed to simply drafting a memo at his Justice's request to identify support for his Justice's posiition) . . . "

is too simple minded even for LLB*.

And comparing Sotomayor's remarks (pulled out of context by LLB*) in a speech is even more simple minded.

I must say that I was surprised by our LLB*'s ignorance on Rehnquist so I Googled and befitting LLB*'s limited research capacities Wikipedia has a feature on Rehnquist that refers both to the memo to Justice Jackson and his Goldwater days at voting polls in Arizona challenging minority voters. But Wikipedia is a mere general introduction and more Googling is required to get at the meat of these episodes. Perhaps reading "Simple Justice" is not for the simple minded.

Since LLB* brought up the subject of demographics, that is what is at the crux of the concern of white males of LLB*'s ilk: that they may become a minority - unless their performances are enhanced (by the likes of Viagra?) - but first they must find willing females - but females insist upon equality. So LLB* and Pat Buchanan can be expected to continue to shoot blanks.

*Little Lisa's bro

# posted by

Shag from Brookline : 1:27 PM

Arne:

1) Why do you hold the racist belief that Muslims are all "darkies?" Every race on Earth practices Islam.

2) Ideology is often passed down in families as parents raise their children in their own secular political faiths. Because the political left in America is more likely to have fewer children and kill off more of those they do conceive through abortions, they will be passing their beliefs to fewer and fewer children.

# posted by

Bart DePalma : 2:05 PM

This comment has been removed by the author.

# posted by

Bartbuster : 2:41 PM

2) Ideology is often passed down in families as parents raise their children in their own secular political faiths. Because the political left in America is more likely to have fewer children and kill off more of those they do conceive through abortions, they will be passing their beliefs to fewer and fewer children.

# posted by Bart DePalma : 2:05 PM

Apparently righwingnuts have been killing off a lot of their children lately.

# posted by

Bartbuster : 2:47 PM

It seems like this thread has gone way, way off topic - which is unsurprising really.

Unsurprising also that in defence of a sexist and racist approach to judicial appointments, our self-described criminal defence attorney and expert in matters military should cite one Marc Steyn, a person with absolutely zero qualifications whether in demographics (or anything else).

Scott Horton points out some of the nasty Mr Steyn's Islamophobic speech including describing Muslims as "sheep-shaggers" in this rather good review in Harper's Magazine of Johan Goldberg's Liberal Fascism: The Secret History of the American Left from Mussolini to the Politics of Meaning Jonah's Fascism.

Obviously, I must declare my interest. My Muslim family has been in the UK for rather longer than the USA has been independent, and I consider myself a loyal subject of the British Crown. Although I have a modicum of both legal and military experience, I have never felt the urge to take over any part of the planet.

Perhaps strangely in Mr Steyn's book, I have never felt the urge to copulate with ovines nor, indeed, with any other quaduped.

I am however aware of a case where a member of a certain regiment was taken flagrante delicto doing just that while on night exercises in the Brecon Beacons. When charged, the fellow (whose ancestry was one Bart shares) offered in his defence that he had thought the sheep was a WRAC (Women's Royal Army Corps) in a duffel coat (unlikely, but not impossible given his inebriated state). Subsequently, one could start a riot in any pub where members of that particular regiment were drinking just by saying "Baaa"!

Seriously, real data reported by demographers Charles Westoff and Tomas Frejka in "Religiousness and Fertility among European Muslims" show that populations need to have 2.1 children per family to keep from shrinking. Among Turks in Germany – one of the longest-standing Muslim immigrant populations in Europe – the rate has fallen to 1.9 children from 4.4 in 1970. Turks in Switzerland also have 1.9, while those in the Netherlands have 1.6, fewer than white British people do. Muslim women in France have 2.2 children, barely more than non-Muslim women there, and that number is falling.

More generally, Muslims and other immigrant populations in Europe have birthrates identical to those of the host country population within 2 generations.

I have no knowledge of US demographics other than the trueism that, apart from Native Americans, just about everybody has recent ancestry from somewhere else. So just as Justice Cardozo (a Sephardi Jew whose family reached the USA via the Sephardi communities in Amsterdam and London) proved to be an ornament to your Supreme Court, I am sure that Judge Sotomayor, once confirmed, will make a memorable contribution to the advancement of the quality of US jurisprudence.

Perhaps poor Bart is just the teeniest bit jealous that with his Iberian name, he is not under consideration for judicial office at least I sincerely hope not.

# posted by

Mourad : 3:30 PM

Mourad:

1) In case you missed it, arne's reference to the Steyn book was one of his wildly mis-targeted analogies, to wit, that Steyn was making a racist argument and that I was an racist for citing to his work on a completely unrelated subject. This was meant to rebut my contention that racism is malum in se and presumably to give arne cover for supporting racial preferences.

2) As to Mr. Steyn's thesis, it is undisputed that the native born Euro population is committing demographic suicide and dying off. His projection that the current reproductive rate of Muslim immigrants will continue with their later Euro born generations is pure speculation. I cited Steyn's work for the former data in order to make a comparison with the sub-replacement birth rate of the American secular left. I am agnostic as to his speculation concerning future Muslim Euro birthrates and have no reason to doubt your data.

3) BTW, DePalma is Italian and not Spanish. My family emigrated from Brindisi four generations back. Given that we paisan males are well represented - in quality and quantity - on the Supreme Court with Scalia and Alito, I doubt the race and gender counters will be looking to nominate this humble attorney to the Supreme Court to fill a quota. even if they could abide my "originalist heresy."

;^)

# posted by

Bart DePalma : 4:15 PM

Mourad says in closing:

"Perhaps poor Bart is just the teeniest bit jealous that with his Iberian name, he is not under consideration for judicial office at least I sincerely hope not."

That's funny, he doesn't look Iberian.

But seriously, folks, I wish he were under consideration for Federal judicial office and supported by the RW Doughboys (Thanks, Frank Rich!): Gingrich, Limbaugh and Buchanan. Can't you just hear them defending our resident LLB*'s extensive comments on the Internet over the past several years?

*Little Lisa's bro

# posted by

Shag from Brookline : 4:21 PM

I guess I was cross-commenting at the same time as our resident LLB* so I just learned that he is not Iberian but rather from the heel portion (how apt) of the long Boot. But this does not answer his anglo-saxon claims.

# posted by

Shag from Brookline : 4:31 PM

Dan Froomkin's White House Watch (WaPo) today has a Colbert Report on the Sotomayor nomination and white males. I still can't link it here, but "watch" it with your eyes shut and imagine our resident LLB* in your mind with his Backpack of Lies.

*Little Lisa's bro

# posted by

Shag from Brookline : 4:46 PM

Shag from Brookline said...

But seriously, folks, I wish he were under consideration for Federal judicial office and supported by the RW Doughboys (Thanks, Frank Rich!): Gingrich, Limbaugh and Buchanan. Can't you just hear them defending our resident LLB*'s extensive comments on the Internet over the past several years?

LMAO! Good heavens, my high tech lynching by a Dem Senate would make borking look like a comparative tea party. Of course, given that I value my intellectual integrity far more than any office, boy would I have fun defending my views and skewering the hypocrisies of my pompous blowhard Dem inquisitors.

Come to thing of it, I pretty much already do that here...

BTW, I am unsure what your fixation is with anglo saxons and their alleged evils, but you will have to look elsewhere to find one. I am a mutt mixture of Italian, Irish, German and a wee bit of French. Not a bit of English heritage to be found.

Further, if you are looking for stereotype WASP rich, you also need to look elsewhere. Until this generation, my family was blue collar. I was the first one of my immediate family to graduate from college and I worked blue collar construction, warehouse and Army jobs to get there because my family did not have the money for tuition. God bless them, my parents gave us kids something more valuable than money - a work ethic and a love for learning. As a result, they ended up with an attorney, a pilot and a doctor.

In short, we are average Americans.

# posted by

Bart DePalma : 5:17 PM

Come to thing of it, I pretty much already do that here...Baghdad, you are regularly humiliated in here.

# posted by

Bartbuster : 5:23 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 5:25 PM

Bart:

1) Why do you hold the racist belief that Muslims are all "darkies?" Every race on Earth practices Islam.

I don't. It's the RW foamer brigades that perpetuate this stereotype.

But the fact that you seem to think that Those People are outbreeding "us" seems to show that even you take there to be some genetic componen of note. It's you that are all concerned about this purported demographic catastrophe, not us. Were your progeny unlucky enough to even be sired by you, one could only hope that they will take up Islam, just to spite you and your bigotry. Or Wicca. Then they could cast spells on you ... except that all proper Wiccans eschew "black" magick.

Cheers,

# posted by

Arne Langsetmo : 5:26 PM

Bart:

[to Mourad]: 1) In case you missed it, arne's reference to the Steyn book was one of his wildly mis-targeted analogies, to wit, that Steyn was making a racist argument and that I was an racist for citing to his work on a completely unrelated subject....

That is it, and Steyn's a piece'c'crap racist, and you are as well for propagating that filth.

... This was meant to rebut my contention that racism is malum in se ...

I agree that racism is malum in se. Not as serious a crime as torture, a crime of which you approve, but nonetheless bad. Which is why you should not consider it a compliment when I so eloquently point out that you are a racist.

... and presumably to give arne cover for supporting racial preferences.

Where have I supported racial preferences? Be specific now.

Cheers,

# posted by

Arne Langsetmo : 5:35 PM

[Bart]: ...the sub-replacement birth rate of the American secular left...

I though Bartbuster had adequately dealt with that nonsense (as I did before but not as elegantly). Apparently this is still flying 40,000 feet over Bart's head. If this behaviour on Bart's (and Steyn's) part is exemplary of the "culture" we're in danger of losing, I say "good riddance to bad trash".

May I note once again that the only people "worried" about the purported decline of the "secular left" is Bart, and Steyn and other such racist azos. And somehow I don't think their "concern" is as honest as could be.....

Cheers,

# posted by

Arne Langsetmo : 5:40 PM

Bart:

Of course, given that I value my intellectual integrity far more than any office, boy would I have fun defending my views and skewering the hypocrisies of my pompous blowhard Dem inquisitors....

Believe me, if you did half as well there as you do here, it would be quite a show. Jon Stewart and Rachel Maddow would be giddy with glee....

Cheers,

# posted by

Arne Langsetmo : 5:44 PM

What an incredible life story our resident LLB* provides, much more so that either Thomas, Alito or Sotomayor. It wasn't quite clear to me, but LLB*'s closing comment:

"As a result, they ended up with an attorney, a pilot and a doctor."

might suggest that our resident LLB* could be all three: he reminds us constantly that he is an attorney, with a DUI specialty; he piles it here, he piles it there, so I guess he's qualifies as a pilot; and he does doctor the facts with his Backpack of Lies.

As for being average Americans, this suggests some voted for Obama/Cheney last November.

And I have no fixation on anglo-saxons. I was merely recalling your claim (without percentages) from time to time of anglo-saxon heritage, for whatever that might be worth.

And I can understand your pride in Scalia and Alito as a paisan. Diversity is good. So we've got an opportunity for a two-fer with this Latina.

Did you write Steve Colbert's schtick?

*Little Lisa's bro

PS I've got to get ready to prepare chicken parm (with eggplant) subs for dinner (salad on the side) for my bride and me, just like in Brindisi. She'll have wine and I'll have a lng-neck Corona wedged with lime. Ciou for chow.

# posted by

Shag from Brookline : 6:02 PM

On Judicial Candour:

"A Judge at first instance should be quick, rude and right. That is not to say that the Court of Appeal should be slow, courteous and wrong, because that is a privilege reserved to the House of Lords"

Perhaps by analogy a privilege reserved also to the US Supreme Court.

Bart wrote:-

"DePalma is Italian and not Spanish. My family emigrated from Brindisi four generations back. Given that we paisan males are well represented - in quality and quantity - on the Supreme Court with Scalia and Alito, I doubt the race and gender counters will be looking to nominate this humble attorney to the Supreme Court to fill a quota."I was not suggesting Bart for SCOTUS, but I thought he might just have ambitions to sit on a night traffic court or some other suitably insignificant appointment.

BTW Brindisi was from 1300 or so until the recent (1861) Unification of Italy part of the Kingdom of the Two Sicilies (Spanish - Bourbon with Murat as a Bonapartist interlude). Etymologically "De" Palma suggests Iberia which is not inconsistent with the history of Spanish control of Puglia.

Still it matters not - since as a robustly Anglo-Saxon sergeant of my acquaintance once observed: "the wops begin at Calais" and dear Bart can accordingly still count himself as being of non Anglo stock even as he tries however desperately to affect the prejudices of the WASPS.

# posted by

Mourad : 6:17 PM

Speaking of dishonesty - intellectual and otherwise - in the pursuit of higher office, Sen Leahy tells us that Judge Sotomayor has now assured him that: "Ultimately and completely, a judge has to follow the law no matter what their upbringing has been."

Well, hallelujah and praise be to the Lord! Sotomayor has transformed herself into a Latina Scalia!

It is fascinating how Sotomayor's judicial philosophy of the past 13 years has evolved over the past week.

In 1996, Sotomayor observed that: "The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances...[A] given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”

In 2001, Sotomayor instructed law students: "Our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that—it's an aspiration because it denies the fact that we are by our experiences making different choices than others."

And who can forget Sotomayor's advice to prospective law clerks to apply to the federal appellate courts, "where policy is made."

So, was Sotomayor telling the truth about her judicial philosophy over the past thirteen years or is she telling the truth now by pretending to be a Scalia clone who will follow the law "ultimately and completely" while promising not the be the kind of justice who "pushes the law in a new direction."

More to the point, if liberal jurisprudence is a self evidently superior means of "deferring to the contitutional views of the country as a whole" as Jack and his colleagues contend, why do liberal jurists and their political supporters hide their liberal jurisprudence from the country during confirmations as if they were concealing a crime?

Profiles in courage.

# posted by

Bart DePalma : 11:36 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 12:19 AM

"Speaking of dishonesty - intellectual and otherwise ..."

... will Bart ever acknowledge his own patent racism, or his ignerrence of equal protection law -- as I pointed out WRT the Brown II decision amongst others?

Cheers,

# posted by

Arne Langsetmo : 12:20 AM

Speaking of geography, here's a lesson that took place during a SCOTUS conference of Justices just a few decades ago.

Justice Marshall: Tony, do you know what the difference is between a Sicilian and an African?

Justice Scalia: No, Thurm, what's the difference?

Justice Marshall: About 50 miles of Mediterranean.

# posted by

Shag from Brookline : 4:32 AM

Here's an interesting summary from law.com today:

"7th Circuit Ruling Agrees With Sotomayor on Second Amendment
The National Law Journal

The 7th Circuit on Tuesday ruled that the Second Amendment right to bear arms cannot be held to restrict state gun control laws until the Supreme Court rules that the right applies to the states. As a result, the ruling in National Rifle Association v. Chicago will likely give Supreme Court nominee Sonia Sotomayor some much-needed political cover against criticism of a similar Second Amendment ruling she joined in on the 2nd Circuit earlier this year."

Circuits are supposed to follow the Supreme Court's rulings and decisions. Heller did not incorporate the Second Amendment into the 14th Amendment so as to make it applicable to the States. In fact, an earlier SCOTUS decision specifically held that the Second Amendment did not apply to the States. So Sotomayor followed the law with the referenced Second Circuit decision. Should she be criticized for doing so?

Those who think the Second Amendment should be incorporated might take a look at Lawrence Rosenthal's "Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs" available via SSRN at:

http://ssrn.com/abstract=1245402

This runs 92 pages.

# posted by

Shag from Brookline : 4:56 AM

Check out Kevin Johnson's "In Context, Sotomayor's Remarks on Race and Judging Aren't Controversial" at:

http://writ.news.findlaw.com/commentary/20090602_johnson.html

Johnson participated in the West Coast conference in 2001 that heard from Sotomayor. A little background is good for context.

# posted by

Shag from Brookline : 6:27 AM

Unless one is delusional, Sotomayer is a racist, pure & simple, as are all members of the treasonous La Raza by definition- since their motto is “For our race everything- for others, nothing”.

Her record is nothing to shout about either, and frankly -if you’ve heard her speak- she’s not what you’d call a towering intellectual.

Eric Holder has some racial hangups and agenda too, calling us “cowards” regarding racial issues and letting-off Black Panthers who stood in front of a polling place with nightsticks.

And Obama himself has shown us a puzzling pro-Kenyan grudge against the British and has said some pretty odd things, even regarding his own grandmother… plus he's the one who nominated all these kooks in the first place.

Whatever happened to the idea of a colorblind society? Team Obama define their world in racial terms all the time- and unlike any white people I know. I wouldn't want to be judged by any of them after what I’ve heard come out of their own mouths- they sound like Jesse Jackson.

If Obama is going to go on with his "justice" agenda largely based upon race- the double standards need to stop… and NOW

http://reaganiterepublicanresistance.blogspot.com/

# posted by

Reaganite Independent : 7:31 AM

Is R-R-R the new K-K-K?

# posted by

Shag from Brookline : 7:55 AM

Shag:

Sotomayor and 7th Circuit can make a defensible argument that Presser is controlling on their circuits, not a good argument considering Presser and its progeny were not applying the due process clause as do modern courts examining incorporation, but a defensible one.

The Supremes should incorporate the Second Amendment next session now that we have a conflict on this issue between the circuits. This would be a great opportunity to reverse the reprehensible Slaughter House decision and bring the P&I Clause back from the dead as the Supremes did the Second Amendment in Heller.

Where the defenders of the Second Amendment have a problem with Sotomayor is her application of the rational relationship test to the fundamental right to keep and bear arms, essentially eliminating the Second Amendment. Expect this to come up multiple times during the confirmation hearings.

# posted by

Bart DePalma : 9:42 AM

Our resident LLB* refers to a "defensible argument" re: Presser. Is there a suggestion that Sotomayor - and the 2nd and 7th Circuits - should on their own have made the decision on incorporation? Isn't that up to the Supreme Court? And how can LLB* be so confident that SCOTUS will ignore the due process provision and shift to P & I? LLB* says:

"Where the defenders of the Second Amendment have a problem with Sotomayor is her application of the rational relationship test to the fundamental right to keep and bear arms, essentially eliminating the Second Amendment. Expect this to come up multiple times during the confirmation hearings."

But our resident LLB* fails to provide the source for Sotomayor's application/test referred to. What and when did she provide this?

Keep in mind that the 2nd and 7th Circuit decisions were NOT that Second Amendment could not be incorporated into the 14th Amendment, whether by due process or P & I, but basically that that would be up to SCOTUS, especially because of the earlier SCOTUS decision to the effect that the Second Amendment does not apply to the States.

Our resident LLB* instead of recognizing that Sotomayor - and Judge Posner - are following the law as laid down by SCOTUS, tries to force a negative against this Latina. Please, cumulatively on LLB*'s part that's more than a tad racist.

And keep in mind that your paisan Scalia in Heller, in dicta, recognizes certain limitations upon an absolute right under the Second Amendment vis-a-vis the federal government. Your paisan made note of the fact that the situation regarding the States remains to be considered. How do you think your paisan would have reacted had Sotomayor and her 2nd Circuit ruled that indeed the Second Amendment governed the States?

*Little Lisa's bro

By the Bybee, the Constitution proper includes a "privileges AND immunities" clause whereas the 14th Amendment has a "privileges OR immunities" clause. How do textualists handle differing conjunctions?

# posted by

Shag from Brookline : 10:50 AM

Who would've thought this thread was actually going somewhere interesting. Although its thrilling, it is sad at the same time, because we see the patent inability of Mr. DePalma to give up partisanship for an honest debate, even when he has good – yes, you read that right – good points.

Sotomayor and 7th Circuit can make a defensible argument that Presser is controlling on their circuits, not a good argument considering Presser and its progeny were not applying the due process clause as do modern courts examining incorporation, but a defensible one.

Come on. You always decry “activist judges,” yet when Sotomayor follows the law, you still can't just give credit where credit is due. (the Ninth Circuit's Nordyke case is indisputably more “activist” than the Second or the Seventh Circuit's cases). While Presser may not be well reasoned law $(at least anymore), it is the law as set down by the Supremes, and I really don't think you would contend a Circuit Court should be disregarding Supreme court jurisprudence. Why can't you ever make your points without cheap shots? Following Presser is not only defensible, it shows judicial humility. “Balls and Strikes” and stuff, right?

The Supremes should incorporate the Second Amendment next session now that we have a conflict on this issue between the circuits. This would be a great opportunity to reverse the reprehensible Slaughter House decision and bring the P&I Clause back from the dead as the Supremes did the Second Amendment in Heller.

Agreed. However, a good debate can be had about how to incorporate the Amendments through this clause, with the duplicity problems, etc. Plus, state courts would have to allow all cases to go to jury at common law over $20? Yowza!

Where the defenders of the Second Amendment have a problem with Sotomayor is her application of the rational relationship test to the fundamental right to keep and bear arms, essentially eliminating the Second Amendment. Expect this to come up multiple times during the confirmation hearings.

As Shag says, first where is your cite? Second, obviously, if the Second Amendment does not apply to the States, which is currently the law, no additional scrutiny would be needed to affirm state action. The “defenders of the Second Amendment” don't have a problem with Sotomayor on this, they have a problem with their own inability to understand the law. It isn't a fundamental right that cannot be infringed by a state, yet. So there is nothing wrong (necessarily) about applying a rational basis to a non-fundamental right. I expect this to come up, and for Republican Senators to sound as dumb as normal. When the Supremes incorporate the Second, then you can talk if someone applies rational basis. Until then, you are arguing for higher scrutiny for a non-right, which is about the same thing that you criticize courts for in abortion cases.

Oh, and I have a lot to say about your errors re "courts make policy", but I don't know if I have enough time to get all my thoughts down just yet.

# posted by

nerpzillicus : 11:34 AM

Shag:

1) Lower courts are only bound by directly applicable Supreme Court precedent. Cruikshank and Presser simply noted pre 14th Amendment law to note that the Bill of Rights including the Second Amendment on their own only apply to the federal government. Neither case raised or addressed the issue of whether the Due Process Clause of the 14th Amendment would incorporate the Second Amendment against the States. Indeed, the Supreme in the later Miller case expressly acknowledged this. Thus, the 7th and 2d could and should have followed the lead of the 9th Circuit in observing that Cruikshank and Presser are not controlling and then perform the incorporation analysis under the 14th Amendments DPC. I am actually grateful that the 7th and 2d went the other was so it can get to the Supremes ASAP before some conservative on the Court dies and Obama appoints another Sotomayor who will write the Second Amendment out of the Constitution.

2) Sotomayor's contribution to Second Amendment jurisprudence is the per curium opinion in Maloney v. Cuomo, 554 F.3d 56 (2d Cir 2009).

3) Scalia should have no problem with the 9th Cir holding incorporating the Second Amendment for the reasons I gave above. In Heller, Scalia simply noted that the issue was not before the court in that case.

By the Bybee, the Constitution proper includes a "privileges AND immunities" clause whereas the 14th Amendment has a "privileges OR immunities" clause. How do textualists handle differing conjunctions?

There is probably very little if any effect on these provisions of the Constitution. Do you have a hypo in mind where the presence of a conjunction or disjunction would be relevant?

# posted by

Bart DePalma : 11:41 AM

Nerp:

Activism is a Court rewriting the law, not reversing precedent that is contrary to the law. This issue does not even arise with Nordyke because the Nordyke decision distinguishes and not reverse Cruikshank and Presser because they are dealing with different issues.

# posted by

Bart DePalma : 11:44 AM

The aptly named "R-R-R" said:

Unless one is delusional, Sotomayer is a racist, pure & simple, as are all members of the treasonous La Raza by definition- since their motto is “For our race everything- for others, nothing”.

Truly amazing how many RW foamers find "racism" in such a comment as Sotomayor's, but not in the various people that infest the Republican party (see, e.g., Lott, Limbaugh, Beck, Tancredo, DeLay, etc.). You want racism, see here and here and here and here (just to show racism is alive and well in the ranks of the RW).

For that matter, Saint Ronnie spread the vicious lies about "Cadillac queens" too.

But this lie about the La Raza motto needs to be called what it is: A nasty, despicable lie and slander.

You know, "R-R-R" really isn't that far removed from "K-K-K" or its progeny "C-C-C" (an organisation that both Bob Barr and John Ashcroft were a bit too friendly with).

Cheers,

# posted by

Arne Langsetmo : 12:13 PM

One of the most self-unaware statements I've heard in a long time (and to Bart's credit, that includes his):

[R-R-R]: "Whatever happened to the idea of a colorblind society? Team Obama define their world in racial terms all the time- and unlike any white people I know. I wouldn't want to be judged by any of them after what I’ve heard come out of their own mouths- they sound like Jesse Jackson."

Cheers,

# posted by

Arne Langsetmo : 12:16 PM

Mr. DePalma,

Activism is a Court rewriting the law, not reversing precedent that is contrary to the law. This issue does not even arise with Nordyke because the Nordyke decision distinguishes and not reverse Cruikshank and Presser because they are dealing with different issues.

Dead Wrong.

We do not suggest that the Court of Appeals on its own authority should have taken the step of renouncing Wilko. If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.

Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)

The Ninth Circuit decision, while (I think) correct, is certainly more activist than the Second, since it inarguably does not follow the law as set down by the Supremes. This isn't even a debate.

Its funny how "activism" for you seems to rest only on the policy outcome of the case in question, and funnier still how "rewriting" and "reversing precedent contrary to the law" seem to be so subjective...

# posted by

nerpzillicus : 12:26 PM

nerp:

Read Cruikshank, Presser and Miller then tell me where they ruled that the DPC of the 14th Amendment does not incorporate the Second Amendment against the States. Indeed, they do not clearly address 14th Amendment incorporation at all because they cite pre 14th Amendment law to arrive at their holdings.

I have briefed this in detail in a Colorado possession of a firearm case and forced the DA to agree to a deferred sentence rather than risking an adverse court ruling. The Nordyke case read like my brief and is my lead authority in future firearms cases until the Supremes rule on this.

It is not activism to distinguish a superior court case by using the court's own holding or lack thereof.

# posted by

Bart DePalma : 12:54 PM

Speaking of Heller, Presser, and Maloney, Eugene Volokh (no 'enemy' of the Second Amendment) weighs in.

Cheers,

# posted by

Arne Langsetmo : 1:02 PM

Bart DePalma, Boy Lawyer:

I have briefed this in detail in a Colorado possession of a firearm case and forced the DA to agree to a deferred sentence rather than risking an adverse court ruling.....

Wow. That told him. Such a man of principle, Bart is..... Rather that actually put his theory in play and establish a good precedent on his 'ironclad' legal reasoning, "Bart" turned his tail and fled.

Reminds me of the time my lawyer said the best cpurse of action was to go for "accelerated rehabilitation" and keep my nose clean, rather than filing A&B charges against the police officer that assaulted me, and risk opposition to the "AR" and a trial and CT/RA conviction (in the face of lying policemen). While it kept my record clean (and my best "interest" was the goal of the lawyer, not nailing some thuggish cop), it was hardly principled.

Cheers,

# posted by

Arne Langsetmo : 1:13 PM

Arne:

You probably did not learn this as a 1L, but the client makes the decision as to whether to accept a plea offer. My client did not want to risk a felony conviction and did not have the money to appeal this up the appellate courts if he lost the motion to dismiss.

My preference to make case law is irrelevant.

# posted by

Bart DePalma : 1:21 PM

The 7th Circuit's reliance upon the Heller footnote 23 to hold that Cruikshank & Presser are controlling is curious because Scalia is strongly implying in that footnote that Cruikshank did not address the issue of DPC incorporation, while Presser and Miller simply noted that the Second Amendment alone only applies to the federal government:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required byour later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmedthat the Second Amendment applies only to the Federal Government.

# posted by

Bart DePalma : 1:26 PM

Bart:

You probably did not learn this as a 1L, but the client makes the decision as to whether to accept a plea offer.

Nowhere did I suggest this is not true. In point of fact, long before I got to law school, I knew this; even in my specific case, where the lawyer did his job and advised me on the possible courses of action and the risks. It was my decision. What I was pointing out is that your 'sterling' defence here was no such thing, regardles of who chose it. It was copping a plea. That's hardly a vindication of any rights or principles.

Cheers,

# posted by

Arne Langsetmo : 1:38 PM

Let's take our resident LLB*'s response to Nerp and eliminate the word "not":

"Read Cruikshank, Presser and Miller then tell me where they ruled that the DPC of the 14th Amendment does . . . incorporate the Second Amendment against the States."

and address it to him. Perhaps our resident LLB* can cite to a Federal District or Circuit Court decision ruling in the first instance on incorporation of any of the first 8 amendments to the Bill of Rights that survived review by SCOTUS. I'm not suggesting that there are no such decisions but such first instance steps would seem to be activist. With respect to the Second Amendment consider the long lapse of time from Miller to Heller during much of which time there was acceptance in much of the community of constitutional scholarship that the Second Amendment had NOT been incorporated.

With respect to any distinctions between the main Constitution and the 14th amendment relative to the use of "and" versus the use of "or" with respect to "privileges" and "immunities" first there is a need to define "privileges" and "immunities" since they are not necessarily the same. Under the main Constitution, their being joined by "and" might suggest the need for both whereas with the 14th Amendment's "or" only one of them may be needed. As for the application of originalism to the main Constitution's P & I (1789) and the application of originalism to the 14th Amendment's P or I (1867?), there isn't clarity. (Why, for example, did the 14th Amendment NOT use "and" when "and" had long been in view in the main Constitution?) Further, the idea that for purposes of incorporation P or I may trump due process under the 14th Amendment has stirred up quite a bit of originalist controversy. Lawrence Rosenthal has a lot to say on this in his article I earlier cited as well as in other recent articles by him. The road to incorporation of the Second Amendment to apply to the States may face a number of hurdles, including limitations.

*Little Lisa's bro

# posted by

Shag from Brookline : 1:49 PM

Our resident LLB* presents this contradiction:

"It is not activism to distinguish a superior court case by using the court's own holding or lack thereof."

*Little Lisa's bro

# posted by

Shag from Brookline : 1:53 PM

Our resident LLB* says:

" . . . because Scalia is strongly implying in that footnote . . . ."

perhaps suggesting this as a standard for Federal District and Circuit Court Judges to read the mind of the Great One or even of his lessers on SCOTUS. "Strongly implying" is a tad subjective. But rather than "strongly implying," perhaps Scalia did not have his originalism ducks in row as of the time of the 14th Amendment to so state strongly. (He clearly did not have his originalism ducks in a row for his dicta on limitations.) Rather, our resident LLB* is "strongly inferring," aka wishful thinking.

*Little Lisa's bro

# posted by

Shag from Brookline : 2:11 PM

Shag:

1) How do you figure that a decision of first impression is necessarily activist? Such a decision is only activist if it adds or subtracts from the law. Take the Slaughterhouse decision for example.

2) A cursory reading of the 14th Amendment indicates that the P&I Clause was meant to incorporate substantive rights against the States and the DPC clause should be limited to procedure. The reluctance of the Supremes to reverse themselves in Slaughterhouse instead lead to judicial activism by creating the legal fiction and contradiction in terms known as substantive due process. From a textual viewpoint, the P&I clause needs to be restored and the entire fiction of substantive due process repudiated.

3) Finally, it would appear that a right would have both the elements of a privilege and an immunity. To the founders, the term "privilege" was used interchangeably with "right" and the term immunity refers to the inability of the government to infringe upon that right. Thus, I do not see how the use of the conjunction or disjunction to join the terms will make any practical difference grammatically.

# posted by

Bart DePalma : 2:38 PM

I really don't know why I do this to myself.

Mr. DePalma,

Read Cruikshank, Presser and Miller then tell me where they ruled that the DPC of the 14th Amendment does not incorporate the Second Amendment against the States. Indeed, they do not clearly address 14th Amendment incorporation at all because they cite pre 14th Amendment law to arrive at their holdings.
...
It is not activism to distinguish a superior court case by using the court's own holding or lack thereof.

Alright, let's do this slow. What is the holding of Presser?
That the Second Amendment only applies to the Federal Government. There is no limitation in its holding that its only because of the privileges or immunities clause. That is the holding. The Court also says it isn't a privileges issues, but that is beside the point. The holding is that it doesn't apply to the States.

When was Presser (or Cruikshank, for that matter) decided?
1886 (1874)

When was the 14th ratified?
1868

There is no question that the law, as decided by the Supreme Court, currently holds the Second Amendment is not incorporated into the Constitution. Right or wrong, the Second and Seventh Circuits followed the law as it currently stands, and the Ninth decided it would create new law. I really have no problem with that, since I think its decision is "defensible." But the point was, Sotomayor, who according to you, is chomping at the bit to legislate from the bench, was the conservative, restrained, humble Judge.

The 7th Circuit's reliance upon the Heller footnote 23 to hold that Cruikshank & Presser are controlling is curious because Scalia is strongly implying in that footnote that Cruikshank did not address the issue of DPC incorporation, while Presser and Miller simply noted that the Second Amendment alone only applies to the federal government:

Are you saying footnotes implying things is ample ground for lower courts to overturn Supreme Court law?

I cited, to you, U.S. Supreme Court jurisprudence re: lower courts overturning the Supremes, even when the underlying rationale is no longer persuasive. You cited nothing. Before you ask me what I read, did you read:

If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.

Its not a question of which is right and which is wrong, or whether the Ninth should or should not challenge questionable Supreme Court precedent. Its about your libel of Judge Sotomayor. Just acknowledge, that in this instance, she followed the law and acted with judicial restraint, something RWs have been (supposedly) calling for a long time.

# posted by

nerpzillicus : 3:33 PM

Nerp:

I really don't know why I do this to myself.

I have no idea why you keep embarrassing yourself. For the last time, read the damn cases!

Your argument is that Cruikshank and Presser must be ruling on the 14th Amendment incorporation via the DPC because the decisions followed the ratification of the 14th Amendment misses a rather key point:

1) Cruikshank, 92 U.S. 542, 552 (1875), and Presser, 116 U.S. 252, 264-65 (1886), cited to the pre 14th Amendment case of Barron v. The City of Baltimore, 32 U.S. (7 Pet.) 243 (1833) for the proposition that the Bill of Rights on their own did not limit the powers of the States. In neither case did the appellants raise a 14th Amendment incorporation argument nor did the Supremes rule upon one to arrive at these holdings.

2) The Supremes in Miller v. Texas, 153 U.S. 535, 538-39 (1894) expressly distinguished the Barron, Cruikshank & Presser line of precedent from the separate 14th Amendment incorporation argument made by appellant in that case. Unfortunately, the Supremes did not rule on the incorporation issue in Miller because appellant had not raised it at trial.

# posted by

Bart DePalma : 4:06 PM

Our resident LLB* demonstrates with this:

"A cursory reading of the 14th Amendment indicates ... "

a simple mind. Rather than a cursory reading, the 14th Amendment has proven over 140 years to be quite complex as its meaning continuing to evolve. This is not black letter law. Since the Heller decision there have been produced many scholarly articles just on whether incorporation would be under the due process or the P or I provision of the 14th Amendment, with significantly differing views.

*Little Lisa's bro

# posted by

Shag from Brookline : 4:17 PM

And our resident LLB* responds:

"1) How do you figure that a decision of first impression is necessarily activist? Such a decision is only activist if it adds or subtracts from the law. Take the Slaughterhouse decision for example."

It is not clear whether our LLB* is referring to SCOTUS's Slaughterhouse cases or the lower court regarding "a decision of first impression." My reference was to a Federal District or Circuit Court in the first instance as possibly being activist. What we have been discussing relates to Sotomayor on the 2nd Circuit and following the law rather being an activist by deciding upon Second Amendment incorporation following Heller.

*Little Lisa's bro

# posted by

Shag from Brookline : 4:27 PM

And LLB* further responds:

"3) Finally, it would appear that a right would have both the elements of a privilege and an immunity. To the founders, the term 'privilege' was used interchangeably with 'right' and the term immunity refers to the inability of the government to infringe upon that right."

We have to address the 1789 founders for the P & I in the main Constitution and the 1868 founders for the P or I of the 14th Amendment. There are differing histories. And there have been several post-Heller scholarly articles that challenge the public meaning or public understanding under principles of originalism for the 14th Amendment's P or I provision. This is not black letter law.

*Little Lisa's bro

# posted by

Shag from Brookline : 4:35 PM

Shag:

:::chuckle:::

Far too many academics make a living out of transforming the simple into the complex and generating differing views.

As a humble trial attorney, my job is to transform the seemingly complex into simple and straight forward concepts for the jury and the judge.

# posted by

Bart DePalma : 4:47 PM

Shag:

The drafters of the P&I Clause of the 14th Amendment deliberately borrowed the P&I Clause from the original Constitution and arguably the original meaning as well. At the very least, the original meaning as it was understood in 1789 would be the starting point for any analysis of the 1868 meaning.

Thankfully, the debates over the 14th Amendment extensively covered the Second Amendment guarantee of the right to keep and bear arms, making it clear that the 14th Amendment was intended in part to protect the right to former slaves to keep and bear arms.

# posted by

Bart DePalma : 4:58 PM

I really don't know why I do this to myself.

I have no idea why you keep embarrassing yourself. For the last time, read the damn cases!

What time is it in your world?

Your argument is that Cruikshank and Presser must be ruling on the 14th Amendment incorporation via the DPC because the decisions followed the ratification of the 14th Amendment misses a rather key point:

No. No. No. No. NO. NO. and you complain about reading. I never said that Presser or Cruikshank found there was no incorporation via the Due Process Clause. My argument is that it doesn't matter, the highest court in the land, the Supreme Court of the United States, has unambiguously ruled, post-adoption of the 14th Amendment, that the Second Amendment is not incorporated against the States. Period. I have also demonstrated that an Appellate Court should not overturn directly applicable superior court precedent, even when its reasoning (like not looking at the due process clause) is no longer good. You keep acting as if it makes a difference. It doesn't. The Supremes have decided the issue, the Circuits should refrain from overruling their superior court.

1) Cruikshank, and Presser, cited to the pre 14th Amendment case of Barron for the proposition that the Bill of Rights on their own did not limit the powers of the States. In neither case did the appellants raise a 14th Amendment incorporation argument nor did the Supremes rule upon one to arrive at these holdings.

Whoa - you are telling me to go read the cases and you say this? What about Presser,

The plaintiff in error next insists that the sections... are an invasion of that clause of the first section of the fourteenth amendment to the constitution of the United States which declares: 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' It is only the privileges and immunities of citizens of the United States that the clause relied on was intended to protect. A state may pass laws to regulate the privileges and immunities of its own citizens, provided that in so doing it does not abridge their privileges and immunities as citizens of the United States. ... For, as was said by this court in Cruikshank,, the government of the United States, ... 'can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction.' 'All that cannot be so granted or so secured are left to the exclusive protection of the state.'

That certainly looks like a (privileges and immunities clause) incorporation argument to me, shot down by the Supremes in very clear language. Go read the cases, yourself.

2) The Supremes in Miller v. Texas, 153 U.S. 535, 538-39 (1894) expressly distinguished the Barron, Cruikshank & Presser line of precedent from the separate 14th Amendment incorporation argument made by appellant in that case. Unfortunately, the Supremes did not rule on the incorporation issue in Miller because appellant had not raised it at trial.

See, this is where you and I just can't see eye to eye. When I think "expressly distinguished the Barron, Cruikshank & Presser line of precedent," I think:
1) the Court might actually mention a conflict with any one of the cases
2) it wouldn't favorably cite to Barron for the proposition that "We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions [second and fourth amendments], and, even if he were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts."
3) and it certainly wouldn't counch such a "express distinguishment" in the conditional: "Andif the Fourteenth Amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, ..."

I guess you and I are going to have to agree to disagree on what "expressly distinguish" means.

# posted by

nerpzillicus : 5:21 PM

Our resident LLB* describes himself:

"As a humble trial attorney ...."

When he did so several weeks ago, I responded with the definition of humble from my dusty, trusty Webster's New World Dictionary. Despite this, our LLB* does this again, perhaps because he accepts the definition.

humble: 1 having or showing a consciousness of one's defects or shortcomings; not proud; not self-assertive; modest 2 low in condition, rank or position; lowly; unpretentious

Good sport that he is, he can chuckle with this.

*Little Lisa's bro

# posted by

Shag from Brookline : 5:22 PM

Back to Sotomayor.

It now appears that the "wise Latinas are better judges than white guys" schtick is an ongoing theme of Judge Sotomayor's speeches extending back to 1994, when she addressed the National Conference of Law Reviews:

“Justice O’Connor has often been cited as saying that “a wise old man and a wise old woman reach the same conclusion in dueling cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes the line to Supreme Court Justice Coyle. I am not so sure that I agree with the statement. First, if Prof. Martha Minnow is correct, there can never be a universal definition of ‘wise.’ Second, I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion. I like Professor Resnik hope it will be a more compassionate and caring conclusion.”

See Page 11 of the linked speech transcript.

# posted by

Bart DePalma : 5:30 PM

Our resident LLB* is so sure of this:

"The drafters of the P&I Clause of the 14th Amendment deliberately borrowed the P&I Clause from the original Constitution and arguably the original meaning as well. At the very least, the original meaning as it was understood in 1789 would be the starting point for any analysis of the 1868 meaning."

that he has failed to read challenges, such as Lawrence Rosenthal's "The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation" available via SSRN at:

http://ssrn.com/abstract=1358473

It runs 44 pages. SCOTUS will have to overcome a few hurdles in incorporating the Second Amendment in harmony with originalism.

Once again our resident LLB* looks upon this as black letter law - no gray area. Perhaps for the lack of gray matter.

*Little Lisa's bro

PS Steak, baked potato and salad, plus a longneck Corona limed. The bride will have wine. Ciou for chow.

# posted by

Shag from Brookline : 5:33 PM

As a humble trial attorney, my job is to transform the seemingly complex into simple and straight forward concepts for the jury and the judge....

... and then cop a plea. That simplifies things immensely.

Cheers,

# posted by

Arne Langsetmo : 7:49 PM

Dear Bart, whose known practice details do not suggest that he regularly argues cases before the Federal appellate courts, asserts that he has successfully argued an issue on which three US appellate courts have split, not in Court before any Judge at any level, but in discussions with some overworked prosecutor as part of a plea bargain exercise. He maintains that this qualifies him as having some authority for his point of view on a subject which has obviously troubled the appellate courts after reading briefs and hearing argument from counsel of undoubted competence (given that bodies such as the NRA are not in the habit of penny-pinching on their representation).

I note that Heller was an extraordinary decision producing manifestly inconvenient results. But pro tempore, argument before the US Supreme Court must be somewhat akin to debate with Bart - a process resembling an effort to convince the founders of the Flat Earth Society that our plant is a spheroid. Perhaps that is why there is such a synthetic furore about the nomination. A minority of the electorate does not wish to see the composition of the court rebalanced.

I noted this NY Times article: Debate on Whether Female Judges Decide Differently Arises Anew.

My experience (unscientific of course) tells me after some 40 years appearing before the courts in my country that on some issues some female judges do react differently to the facts, as do some judges from ethnic minorities, as do some Roman Catholics, as do some academics (who in England sometimes sit as part-time judges). Quite often, we do not learn who the Judge or panel hearing a case will be until 4 pm on the day before a hearing. Thus one tends around that time to be tweaking one's notes for oral argument to make one's case more attractive to the particular judge(s) before whom one is listed to appear.

Surely, if candour is required, then the answer is that judges should confess that they have foibles and prejudices which impact on their decisions - all we can ask is that they try to put these prejudices to one side as they put on their robes.

We also have to accept that sometimes they will not be even aware of their own prejudices.

I recall a good many years ago a Judge addressing a Jury in these words: "I know I need not warn you about the dangers of being prejudiced against this Defendant because he is, I suppose in this day and age, I had better say 'non-white'. I use the term 'non-white' advisedly Ladies and Gentlemen of the Jury, because in this day and age, anything which is said by a Judge about a gentleman of colour is likely to ignite an explosion of hysteria in well-meaning people." There was a lot more in the same vein. Well, the particular comment certainly did trouble the Court of Appeal (Criminal Division) when the case got there, although I am pleased to say their Lordships did not become hysterical.

But the point of my story is that when the Jury came back with a guilty verdict, the Judge sentenced, then called us into his chambers and remarked: "I must be loosing my touch. I summed up for an aquittal. I shall write to the Court of Appeal and ask for expedition of the appeal." He had been entirely unconscious of the likely impact of some of his remarks on the well-meaning people in the jury box.

# posted by

Mourad : 3:28 AM

A little whimsy comes to mind as I note comments from time to time about 5-4 SCOUTUS decisions.

I recall the movie "9 to 5" starring a celebrated pair - oops! - quartet of female actresses in a semi-musical of gender differences in a business setting. How about a semi-musical "5 to 4" reflecting SCOTUS decisions. Mel Brooks might write and produce it. There could be skits on the long history of 9 white males serving on SCOTUS - those were the days - until Thurgood Marshall arrived on the scene. Perhaps with this change in living color, a skit could focus upon this new Justice's role as doorkeeper - to accommodate the 8 white Justices in their black robes in recognition of their seniority. As a schtick of theatrical license, this new African-American Justice could wear white robes - but the Chief might object as the former may be considered the leader of the band by many. Then we get the first female Justice, creating quite a furor bcause it might limit the jock talk that takes place in conference. But the 8 males (7 white, 1 black) take solace as Justice O'Connor befittingly becomes the doortender with her obvious domestic qualifications.

Following Marshall, the "Negro" seat goes to Justice Thomas after a contentious nomination battle involving an African-American female lawyer who had worked with him involving alleged sexual misconduct. This could feature a "High Tech Lynching" scene with KKK film clips.

The next major scene would involve Bush v. Gore, followed by video clips of events of the next 8 years under the selected President of the 5-majority to demonstrate: As ye sow, so shall ye reap.

Of course, Heller v. District of Columbia (5-4) calls for another major scene, with Justice Scalia opening his robes as he delivers the decision displaying that he is indeed carrying, outgunning the 4-minority. Perhaps there could follow a dream (nightmare!) anarchy scene of incorporation of the Second Amendment to apply to the State, featuring Clint Eastwood as Justice Dirty Harry.

But the real dream follows with the election of an African-American President who in turn nominates a Latina Circuit Court Judge as suitor of the retiring Justice Souter's stealth seat on SCOTUS. The Senate Judiciary Committee hearing may serve as the final - or at least penultimate (my favorite word) - scene. Theatrical license would permit the hearing to be addressed by the Right Wing Republican white male Pillsbury Doughboys (thanks again, Frank Rich): Gingrich, Limbaugh and Buchanan, with a zany Marx Brothers routine.

This is just an outline, a work in progress. But what's needed are songs, just as in "9 to 5," especially a catchy title song like Dolly Parton's "9 to 5" that carries the theme of the production. And [drum roll, please] that would be "5 to 4." Since so many words rhyme with four, there could be quite a few verses throughout the production. So that's the next step: the song "5 to 4" perhaps to be performed by the Capitol Steps.

To close out this dream, imagine on opening night on Broadway President Obama and his lovely bride coming to New York City to watch "5 to 4." This semi-musical might just outdo "West Side Story."

As for casting, that will be fun. For example,the choice for Justice Scalia could come from the cast of "The Sopranos." To appease white audiences, the Latina role might go to Bette Midler. Somehow we'll have to work in someone from the Blogosphere, at least in a minor role. (Now whom might that be?)

But the lead song has to be addressed. Let's get a start on that:

"5 to 4"

5 to 4,
That's the score,
Bush v. Gore,
8 years of gore.

Let's get a little help out there. Boy, I'm already humming "5 to 4" and my toes are tapping.

# posted by

Shag from Brookline : 7:02 AM

Mourad:

But the point of my story is that when the Jury came back with a guilty verdict, the Judge sentenced, then called us into his chambers and remarked: "I must be loosing my touch. I summed up for an aquittal. I shall write to the Court of Appeal and ask for expedition of the appeal." He had been entirely unconscious of the likely impact of some of his remarks on the well-meaning people in the jury box.

My friend, this is yet another example of the differences in our respective legal systems. If a judge admitted to counsel that he was intentionally taking the side of a defendant in a criminal case, any ethical prosecutor would report the judge to the state's judicial review board. To you Brits, apparently this is just an amusing anecdote and impartiality is not expected in your courts.

# posted by

Bart DePalma : 9:55 AM

BTW, NRA has filed its petition for cert from the 7th Circuit here.

The question is whether the Court can incorporate the Second Amendment while again avoiding a determination of whether the right to keep and bear arms is fundamental.

# posted by

Bart DePalma : 10:01 AM

Bart,

It seems pretty easy to imagine a case in which the judge felt that justice was not served by the verdict. In which case, should the judge observe that in the hearing of the prosecutor, he was going to expedite an appeal, would you still say that the prosecutor would be justified in filing a complaint?

If that is the actual feeling among prosecutors, then it would seem to indicate a winner-takes-all, anything-goes attitude in the legal system rather than a gentlemanly adversarial attempt to see that a fair trial results.

It would also seem to be a powerful force against candor on the part of the judge, not merely in public, but even in chambers.

# posted by

C2H50H : 10:34 AM

C2H50H said...

Bart, It seems pretty easy to imagine a case in which the judge felt that justice was not served by the verdict. In which case, should the judge observe that in the hearing of the prosecutor, he was going to expedite an appeal, would you still say that the prosecutor would be justified in filing a complaint?

Neither expressing the opinion that the jury did not do justice nor expediting an appeal are violation of a judge's oath to remain impartial.

Mourad is discussing a case where the Court intentionally attempted to influence a jury on behalf of the defendant in a case. That act should get him or her removed from the bench.

It would also seem to be a powerful force against candor on the part of the judge, not merely in public, but even in chambers.

You are correct. That is why it is so rare to find a judge like Sotomayor who is so open about her rejection of impartiality. Most of these shenanigans occur with a nod and a wink.

In the real world, it is up to the trial attorney to derive indirect evidence of court partiality and then it is usually called mere error by an appellate court.

In this Senate confirmation hearing, the members of the Judiciary committee have all the evidence they need to challenge Sotomayor's ability to comply with her judicial oath of impartiality.

In the real world, Sotomayor would be dismissed from a jury pool for cause for her inability to remain impartial. Why then is she qualified to sit on the bench?

# posted by

Bart DePalma : 10:47 AM

Let's turn around our resident LLB*'s words and apply them to him:

"In the real world, LLB* would be dismissed from a jury pool for cause for his inability to remain impartial. Why then is he qualified to serve as an attorney, an officer of the court?"

There is hatred spewed by our resident LLB* in just about every position he takes, displaying more than a tad of bigotry. Perhaps our LLB* would prefer to go back to the days of Plessy or even pre-Civil War.

*Little Lisa's bro

# posted by

Shag from Brookline : 11:07 AM

Our resident LLB* seems to suggest with this:

"The question is whether the Court can incorporate the Second Amendment while again avoiding a determination of whether the right to keep and bear arms is fundamental."

opening the door just a tad and waiting until later to address the torrent of efforts towards an absolute, unlimited fundamental right to keep and bear arms, perhaps leading to anarchy. The NRA recognizes Scalia's dicta on limitations that might be available to the federal government but apparently does not wish to have that addressed head-on with incorporation for the States; that Scalia's dicta-limitations can be addressed on a case-by-case basis. But consider the problems that certain States might face. Lawrence Rosenthal addresses these problems in great detail in his "Second Amendment Plumbing After Heller: Of Standards Of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs" available via SSRN at:

http://ssrn.com/abstract=1245402

If Cert. issues, briefs filed may well exceed the 71 in Heller. With incorporation one size may not fit all States.

*Little Lisa's bro

# posted by

Shag from Brookline : 11:24 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 11:24 AM

Shag:

Even fundamental rights are not absolute. Scalia appears to be modeling his application of the Second Amendment after that for the First Amendment.

Back to the issue of incorporation, if the Supremes employ selective incorporation through the DPC, the majority would need to find that the right to keep and bear arms is fundamental.

The only way I see to avoid this preliminary holding is to resurrect the P&I Clause and employ some other standard for incorporation.

Interesting times when the Court is clearing away the errors of the Reconstruction Era and restoring Constitutional rights.

# posted by

Bart DePalma : 11:33 AM

Shag:

As you well (or should) know, impartiality does not mean that a juror or judge may not have opinions, but rather that the juror or judge puts his or her personal opinions aside and acts impartially.

Sotomayor would be stricken from a jury for cause based upon her own assertions challenging the need to be impartial.

The fact that Sotomayor could not sit on a jury for an inability to be impartial begs the question as to why she is being allowed to sit on the bench in violation of her oath to be impartial?

# posted by

Bart DePalma : 11:34 AM

Apparently our resident LLB* confuses his biased opinion for "fact" with this:

"The fact that Sotomayor could not sit on a jury ...."

How is this a "fact"? You as an astute trial attorney could challenge her for cause, but the decision would be made by a judge. And that judge could be a Latino/Latina or a person of color that might see through your bias. You're wearing so many hsts on this screed would not disguise your Pinocchio performance.

*Little Lisa's bro

# posted by

Shag from Brookline : 11:35 AM

Shag:

You are postulating that a Latina judge will refuse to excuse a Latina juror like Sotomayor for cause when Sotomayor stated during voir dire that: "My friend believes that jurors 'must transcend their personal sympathies and prejudices.' I wonder whether ignoring our differences as women or men color, we do a disservice both to the law and society. Our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that—it's an aspiration because it denies the fact that we are by our experiences making different choices than others."

I cannot imagine a stronger, more bullet proof issue on appeal to reverse a guilty verdict. The appellate court would excoriate the trial judge.

# posted by

Bart DePalma : 11:45 AM

Here's another beaut from our resident LLB*:

"Interesting times when the Court is clearing away the errors of the Reconstruction Era and restoring Constitutional rights."

It was interesting times when the Court finally cleared the error of Plessy with Brown v. Board of Education, as a start to providing for civil rights that were deferred for so long after the 13th and 14th Amendments. I still suspect - perhaps because of our resident LLB*'s silence - he would like to go back to Plessy.

*Little Lisa's bro

# posted by

Shag from Brookline : 11:45 AM

Shag:

You know, of course, where to stick your ongoing race card slanders.

Brown v. Board was an outstanding decision that was nearly a century overdue.

The difference between us is that I support all the rights guaranteed by the Bill of Rights that should be incorporated through the P&I Clause of the 14th Amendment. You pick and choose between them based on your ideology.

# posted by

Bart DePalma : 12:00 PM

Bart,

It shouldn't have to be pointed out to an attorney that the jobs of judge and jury are quite different (and both from executioner.)

I'm amused by the way your argument changes from strict adherence to theory (as in the latest cases, where supposedly Sotomayor would be excused from a jury for remarks made 8 years ago, and a judge who expressed, in chambers, an opinion on a jury case would be charged with an ethics violation), to your earlier, "well, in theory, that's how it's supposed to work, but in practice everybody has opinions which influence their testimony."

Shag, Bart has already weighed in that Brown and Plessey are one of the major issues facing life in America right now. He didn't say what needs to be settled about them, though.

# posted by

C2H50H : 12:02 PM

Bart:

Sotomayor would be stricken from a jury for cause based upon her own assertions challenging the need to be impartial.

Well, if she actually did that, you might have a valid argument.

But for the Nth time, she said no such thing. She said she hoped that a wise Latina with certain life experiences under her belt) would generally come to better conclusions (note, she didn't say they necessaruly "would", much less what you falsely claim, "should"). She issues no admonition to prospective judges that they do such, and to suggest she did is simply a lie.

It's all the worse because she actually said the very opposite of what you're claiming for her in the rest of the speech that keeps getting left out:

"Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with...Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases...."

Clearly she states the noncontroversial proposition that every human is freighted with their own experiences and that this has an influence on how they see things (so noncontroversial that the Rethuglicans didn't threaten filibuster and three month photo-op... -- umm, "hearings' -- when Alito said the very same thing.

And she expressed her "aspiration" that judges could transcend that whenever possible.

So please stop with the lies, Bart.

Cheers,

# posted by

Arne Langsetmo : 12:20 PM

Bart:

Brown v. Board was an outstanding decision that was nearly a century overdue.

That's funny. You bitched and moaned about the horrible Brown II here.

And you say this specifically:

"Your citation to Brown and Roe prove my point I think. There is no basis in the Constitution for either Court ordered desegregation or a right to abortion."

Or was that some eey-vull Doppelgänger that name-jacked you? Call DHS! The Terra-ists are attacking our Patriotic 'Merkun Bart's reputation!!!

You know, Bart, you oughtn't to say this kind of stuff when it's so trivial to show that you're completely full'o'crap. Because it last forevah on the InterToobz and cements your legacy....

Cheers,

# posted by

Arne Langsetmo : 12:27 PM

C2H50H said...

I'm amused by the way your argument changes from strict adherence to theory (as in the latest cases, where supposedly Sotomayor would be excused from a jury for remarks made 8 years ago, and a judge who expressed, in chambers, an opinion on a jury case would be charged with an ethics violation), to your earlier, "well, in theory, that's how it's supposed to work, but in practice everybody has opinions which influence their testimony."

Of course, there are judges, jurors and witnesses who cannot or will not follow their oaths.

If a witness had announced beforehand that he or she could not follow the oath to tell the truth, I would be able to get that witness stricken under the rules of evidence.

Similarly, when Judge Sotomayor announces that impartiality is a mere aspiration that she is unsure judges can or even should maintain, any ethical Senator determining whether to confirm Sotomayor should ask her hard questions about whether she can follow her oath as a justice.

# posted by

Bart DePalma : 12:40 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 1:07 PM

While our resident LLB* may be late in welcoming Brown v. Board of Education, it is good that he has finally seen the light, Hallelujuh, if he is sincere. (Arne has raised questions in this regard based upon our LLB*'s past comments. Perhaps our LLB* will let us know when and under what circumstances he reborn to recognize civil rights.)

Now our resident LLB* cuts me to the quick with this:

"The difference between us is that I support all the rights guaranteed by the Bill of Rights that should be incorporated through the P&I Clause of the 14th Amendment. You pick and choose between them based on your ideology."

I support all the rights guaranteed by the Bill of Rights that should be incorporated through the 14th Amendment, whether through both the P or I and due process provisions or otherwise. I do not pick and choose. The 14th Amendement has been in effect since 1868, just over 140 years. During most of that time, SCOTUS has been in the control of white males. In more recent years, an African-American (one at a time) has graced the Court and so have a couple of white females (two together for a while, currently down to one). SCOTUS should be criticized, not me, for failures to so incorporate. Perhaps the white male dominance of the Court contributed to this. But in fairness the Court did not have a blueprint of rights under either the P or I or due process provisions of the 14th Amendment. The job of incorporation squarely has been with SCOTUS, not Courts of Appeal Judges. Consider that there may be rights covered by the P or I and due process provisions of the 14th Amendment beyond the Bill of Rights' first 8 Amendments. It's up to SCOTUS. Now perhaps the addition of a Latina to SCOTUS may spark incorporation of many rights, even beyond 1 through 8 of the Bill of Rights. Keep in mind that 9 white males on SCOTUS did limited work on incorporation.

As for my ideology, it is for justice - for all - including white males.

*Little Lisa's bro

# posted by

Shag from Brookline : 1:43 PM

Bart,

Sadly, your analogy breaks down for me due to your inability, apparently, to accurately interpret or paraphrase Judge Sotomayor.

Torture the few quotes as you can, unlike people they can only say what they say, not what you want them to say.

# posted by

C2H50H : 2:12 PM

Has our resident LLB* stunned into silence his critics (and supporters) with this:

"Brown v. Board was an outstanding decision that was nearly a century overdue."

On reissues of Jack Balkin's books on Brown can we expect this quote as a blurb?

Wassup, bro?

*Little Lisa's bro

# posted by

Shag from Brookline : 6:48 AM