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Friday Talking Points [79] -- Judicial Activism And Bias

[ Posted Friday, May 29th, 2009 – 16:38 PDT ]

"Judicial activism" (or, alternatively, "legislating from the bench") is defined -- no matter what your political beliefs -- as "judges not ruling the way I want them to." It's an inherently partisan statement to make, even if it doesn't sound like it. If you are a Republican, using the term means courts ruling for things you don't like. Same for Democrats. The irony is that while the charge is leveled in order to prove some sort of bias or prejudice in a judicial candidate or judge, the only thing it usually winds up proving is the bias of the accuser -- and not the accused. Because it almost always boils down to the accuser wanting the judge or justice in question to rule in a certain partisan way -- before even hearing the facts of any particular case.

Republicans have begun their campaign to derail President Barack Obama's nomination of Sonia Sotomayor to the Supreme Court. And, as usual, the cries of "judicial activism" are loud and shrill.

But what is missing in this entirely predictable debate is an admission of the basic facts involved. Because our government was set up by the Founding Fathers to include a constant power struggle between the three branches. From the very beginning, the courts have struggled with both various congresses and various presidents. And "legislating from the bench" is only part of the story.

There is also "adjudicating from Congress and/or the White House." And "legislating from the Oval Office." As well as "executive-ing from Congress and/or the courts" (OK, maybe that last one needs work, sorry).

Kidding aside, though, our three branches of government are in constant tension, because the Constitution is remarkably vague -- or outright silent -- about where the boundaries of power between the three branches lie. This omission sets up an ongoing battle over such power, which has been going on since the very beginning of our republic.

To begin with, the term "judicial activism" can be seen as somewhat of an oxymoron. Judges (and the courts) are by definition passive in our government. Courts are not allowed to interject themselves into anything they wish, no matter how much they may wish to do so. They have to, instead, wait for a case to come along with an actual injured party who is suing for redress of grievance. The judges can either grant this redress or deny it, but they cannot initiate the process. So, technically speaking, there is no such thing as an "activist judge."

But judges do interpret laws every day. The Supreme Court actually made one of the first moves in this power struggle, and carved out the power to interpret the Constitution out of thin air (see: Marbury v. Madison). By doing so, they declared themselves free to step all over Congress' ability to make law.

But just because they do so, doesn't mean the other two branches necessarily have to go along with them. When the Supreme Court rules and Congress doesn't like it, they have the option of quickly passing a law overturning the court's decision (see: Lilly Ledbetter law). Sometimes Congress overreacts in "adjudicating from Congress," and such power plays become painfully obvious to the public (see: Terri Schiavo).

The White House, as well, is in a constant struggle with both branches over the "executive privilege" claim (which is nowhere to be found in the Constitution itself). Sometimes presidents comply with court decisions on this issue (see: Nixon turning over his tapes), and sometimes they don't (see: Bush and Cheney stonewalling courts on many disclosure issues). Sometimes presidents just out-and-out defy the Supreme Court in blatant fashion (see: Andrew Jackson and the Cherokees, or Worcester v. Georgia).

Congress and the White House have their own lines of tension in this power struggle. Congress' ability to "perform oversight" over the executive branch waxes and wanes with strong Congresses and weak. Such a bedrock government power as the ability to declare war has shifted since World War II from Congress to the president, and has never fully been resolved by the courts (see: the War Powers Act) -- because both sides are afraid they'll lose if the Supreme Court ever actually rules on it. So they prefer to keep it vague instead of settling the issue once and for all. Even if the Supreme Court had strong opinions about the War Powers Act, it cannot take an active role until a case lands before them, since they are by definition passive.

In actual fact, the only truly clear lines in the Constitution's text are over how the branches can overrule each other -- the power to pardon, and the power to impeach, both of which are fairly absolute.

But in the past half-century or so, Supreme Court justices have come under a lot of partisan scrutiny (see: "Impeach Earl Warren!") because they have ruled on some issues which Congress has been too craven (or too politically deadlocked) to do -- like segregation in schools, for instance, or abortion.

Such tension between the co-equal branches of our government, however, should be seen as the natural state of our government as the Founders intended it. Because this is precisely what is meant by the phrase "checks and balances." The Republicans, currently in a minority-party snit, have recently been trying to redefine this term to mean "a healthy balance between two political parties so that one party doesn't rule across all branches of government."

This is absolute nonsense.

The concept of "checks and balances" has nothing whatsoever to do with political parties or partisan politics. It has to do with the courts standing up to Congress and the White House occasionally (as well as the other ways such struggles in our power triangle manifest themselves).

In other words, the Supreme Court from the beginning was supposed to be a "check" or "balance" to Congress' ability to make law. And if interpreting that law "makes" new law, then so be it.

Which is another way to define "judicial activism" or "legislating from the bench." Anyone who can't see that this is part of the "original intent" of the framers of the Constitution doesn't understand what "original intent" means. This power struggle has been going on for over two hundred years now, and is exactly what the Framers intended -- or else they would have explicitly laid down the boundaries when they wrote the Constitution. Judicial activism (whether it goes for your side or against your side) is as American as apple pie. It's part of who we are. Deal with it.

 

Most Impressive Democrat of the Week

We have two Most Impressive Democrat Of The Week awards to hand out this week, I am happy to say.

The first goes to Secretary of State Hillary Clinton, for announcing this week that the State Department would be extending spousal benefits to cover same sex partners. Gays serving in the State Department will now receive the same benefits for their partners as married couples now enjoy. WashingtonPost.com has the full list of what this covers. In the corporate world, this would not be seen as big news, since most international corporations granted spousal benefits to gay employees years ago. But it is indeed big news, because this is a department of the federal government, who, in the words of former ambassador Michael Guest (who resigned in 2007 after a 29-year diplomatic career) said treated diplomatic pets better than same sex partners. And it is big news because Clinton's effort may run afoul of the Defense Of Marriage Act (DOMA) which bans the federal government from doing precisely this sort of thing. The inevitable lawsuit by those who care about such things has not yet been filed, but will undoubtedly be in the works once Clinton officially makes the rule change. And Clinton testing DOMA in the courts is ironic, since it was her husband who signed the law in the first place. For standing tall on gay rights, Hillary Clinton gets a MIDOTW award. This is why the award is known as "The Golden Backbone," and we applaud Hillary for showing the strength of hers.

And the second (although we're not entirely sure she's officially a Democrat) goes to Sonia Sotomayor, for her life story and for being the first of Obama's nominees to the Supreme Court. Being the first Latina nominated to the highest court in the land is impressive enough, but the more you hear about her story, the more impressive she gets. I recently had the occasion to talk to a Princeton alumna who attended school with Sotomayor as an undergraduate. She said the most impressive thing about Sotomayor was not that she graduated summa cum laude, but that she won the Pyne Prize the same year. The Moses Taylor Pyne Honor Prize, given to the senior who has "manifested in outstanding fashion... excellent scholarship and effective support of the best interests of Princeton University," is Princeton's highest honor awarded to an undergraduate. And, according to my source, most Princeton grads remember who won the Pyne Prize over who their valedictorian was. It's that impressive. Sotomayor was the first Latina to win the prize, which is given not just for outstanding grades but also for community involvement and extracurricular activities.

While the Most Impressive Democrat Of The Week award may not be as prestigious as the other awards on Sotomayor's shelf, for her nomination to the Supreme Court she has had a week which can only be called "impressive" by all. For that, she has earned her MIDOTW award. Well done, Judge Sotomayor!

[Congratulate Secretary of State Hillary Clinton on the State Department contact page to let her know you appreciate her efforts. Congratulate Sonia Sotomayor via the White House's contact page, who will be shepherding her confirmation process.]

 

Most Disappointing Democrat of the Week

Sadly, we also have two winners in the Most Disappointing Democrat Of The Week category as well.

First up is Terry McAuliffe. You may remember him from the Clinton years. He is now running for governor of the commonwealth of Virginia. Since he knows oodles of deep-pocket donors, it's expected he will raise boatloads of cash for the primary race. But a rather ugly story surfaced this week, which McAuliffe did not deny. Ralph Nader publicly accused McAuliffe of a rather sneaky tactic in the 2004 presidential race. From the WashingtonPost.com blog which broke the story: "Nader said that McAuliffe offered him an unspecified amount of money to campaign in 31 states if Nader would agree to pull his campaign in 19 battleground states." Mark Nickolas at Huffington Post has a good overview of the whole mess as well.

So, even though this occurred quite a while back, Terry McAuliffe is hereby awarded a retroactive MDDOTW award for trying to use cash to influence an election in a way that may not have been illegal, but certainly reeks of unfairness.

But in the "cash changing hands for nefarious purposes" category, McAuliffe isn't this week's most brazen disappointment. For that, we had Roland Burris' other shoe dropping. To review our story so far: Burris entered the Senate under a gigantic cloud labeled "Rod Blagojevich." Blagojevich appointed Burris on Blaggy's way out the door of the Illinois governor's mansion (from which he was dragged kicking and screaming, in disgrace). Blaggy was taken down for his whole "pay to play" theory of government. Burris, when he was being seated, was asked whether he had offered any "pay to play" money to Blaggy, and Burris denied the charge.

But one of those pesky tapped phone conversations came to light this week, in which Burris offered not only campaign donations to Blaggy, but also offered to mow his lawn every week, wash his car, and let him win at golf. Actually, I made most of that up -- I don't even know if the two play golf. Ahem.

Seriously, though, Burris is quoted in the transcript assuring Blaggy's brother that he would write a check for Blaggy's campaign, and (by the way) that Burris really, really, really wanted to be a senator.

So, both for the act of offering such "pay to play" money, and for lying about it later (to Congress, no less, some of whom are now seriously annoyed at Burris), Roland Burris has earned his Most Disappointing Democrat Of The Week award.

For shame, both of you!

[Contact Terry McAuliffe on his campaign contact page, and Senator Roland Burris on his Senate contact page, to let them know what you think of their actions.]

 

Friday Talking Points

Volume 79 (5/29/09)

For the most part, the voices being raised against Sonia Sotomayor's nomination to the Supreme Court are doing their own job of discrediting themselves. So a light touch is recommended this week in pushback. Her detractors have already got enough rope to hang themselves, so to speak, with racial overtones on full display. Leading the pack is none other than Newt Gingrich, who shows once again (see: Newt serving divorce papers to his wife's hospital bed) that he has a spectacularly bad sense of timing.

For all Democrats, and especially those who happen to hold office and are being interviewed by the media this weekend, we present our weekly roundup of talking points.

 

1
   You just can't make this stuff up

Seriously, you can't.

"I notice that Newt Gingrich called Sonia Sotomayor a racist recently on Twitter. The most disturbing part of this story, though, is that he posted this less than 24 hours after he visited Auschwitz. You just can't make this stuff up, folks."

 

2
   Some good advice... from a Republican

Other (and wiser) Republicans are urging some caution in the attacks on Sotomayor. Will the red-meat base (and those who play to them or raise money from them) take note? Probably not....

"I notice that a Republican consultant named Lionel Sosa cautioned his fellow Republicans recently, and I quote, if a Republican doesn't care about getting reelected, and a Republican doesn't care about the image of the Republican Party, they may vote against [Sotomayor], but I think in the end, we'll see who the smart ones are and who the not-so-smart ones are by how they cast their votes, unquote. Now, I would not go as far as calling Republicans who vote against Sotomayor 'not so smart,' but I would recommend Republicans take Sosa's words to heart in considering this extremely well-qualified candidate."

 

3
   What about all those "up or down vote" quotes?

This one should only be used later in the game, but it's worth pointing out now just in case.

"Republicans, when they ran the Senate and with a Republican in the White House, endlessly demanded an 'up or down vote' by the full Senate over judicial nominees. I'm sure any journalist worth their salt can find dozens of these quotes from just a few years ago, if they bother to look. It's interesting how Republican philosophy changes in such stark partisan terms -- before they were for 'up or down votes,' and now we hear talk of a filibuster."

 

4
   Judicial activism is in the eye of the beholder

This is an extension of the lead-in to today's article.

"I hear a lot of Republicans talking about 'judicial activism' now, but the only thing that term actually means is 'judges doing things I don't agree with.' It is impossible to be against the concept of 'judicial activism' and support what the Supreme Court did in Bush v. Gore, for instance, since it was a clear case of judicial activism. And when judges do follow the letter of the law, but Republicans don't like it, they tend to overreact as was shown in the case of Terri Schiavo. Whenever anyone uses the term 'judicial activism' the only bias it actually shows is the bias of the person making the claim -- because they want a judge who will rule the way they want, all of the time. Which is the very definition of bias, or prejudice."

 

5
   United Nations calls for American Truth Commission

This one, obviously, only works for Democrats who support some sort of Truth Commission to look into the abuses of the last eight years.

"Philip Alston, the United Nations' special rapporteur on extrajudicial executions, wrote in a recent report that the United States has ignored, quote, possible war crimes, unquote, and raised suspicions about five detainee deaths by torture at the hands of Americans. He supports a 'national commission of inquiry' and writes in this document, quote, a refusal to look back inevitably means moving forward in blindness, unquote. I could not agree more, and call for the formation of a Truth Commission to look into this whole mess so we can move forward with eyes open, not shut."

 

6
   Give Wall Street the deal the autoworkers just got

This one has annoyed me ever since both "bailout" stories began.

"I see that GM autoworkers have agreed to the suspension of cost-of-living raises, some holiday pay, and performance bonuses in an effort to save the company. I am still waiting for the people who work at the bailed out Wall Street banks to offer the same sort of personal sacrifice, but I am not holding my breath, if you know what I mean.

 

7
   Pelosi Galore update

And finally, an update on a story from last week's talking points. It seems that the Republican National Committee has had second thoughts about their web ad which compared Nancy Pelosi to James Bond villain Pussy Galore (which, in the hands-down headline of the week, prompted Huffington Post blogger Chris Kelly to title his piece: "I Knew Pussy Galore. Pussy Galore Was a Friend of Mine. And You, Nancy Pelosi, Are No Pussy Galore"). Now, normally when political parties produce these web videos, their one hope is that it will "go viral" and not only be seen by as many people as possible as a result -- but also (importantly, when figuring advertising budgets) do so for free. Normal political ads (those on television, for instance) actually cost money to run, and even with television ads the party dearly hopes that the news people will run their ad for them (and provide the same sort of free publicity).

But this particular ad, it appears, was so embarrassing that the RNC is actually now trying to suppress it on copyright grounds. Amazing.

"You know, normally when a political video is placed on the web by a political party, they are delighted to see it go viral and appear in as many places as possible. But last week the RNC put out an ad comparing Nancy Pelosi to the James Bond character Pussy Galore, and it seems even they were (eventually) embarrassed by it. I see that they pulled the ad off their own YouTube account, and are now trying to get YouTube to delete it from other accounts as well. At least they had the good sense to be properly embarrassed, even if it did take them awhile. This just goes to show how incredibly divided the Republican Party is right now."

 

Cross-posted at: Democratic Underground

Cross-posted at: The Huffington Post

 

-- Chris Weigant

 

42 Comments on “Friday Talking Points [79] -- Judicial Activism And Bias”

  1. [1] 
    Osborne Ink wrote:

    "The irony is that while the charge is leveled in order to prove some sort of bias or prejudice in a judicial candidate or judge, the only thing it usually winds up proving is the bias of the accuser — and not the accused."

    Funny you should say that. I put together a "top ten" list of Republican objections to Sotomayor in my blog this week, noting they said much more about the GOP than Sotomayor:

    1) She's a racist

    2) She likes ethnic food

    3) She's too empathetic

    4) She corrects bad spelling

    5) She isn't "smart" (summa cum laude notwithstanding)

    6) Her name sounds funny

    7) The Supreme Court hates her (it doesn't)

    8) She's too radically leftist

    9) She's too liberal

    10) She's a she.

    Put it together, and you have a political party determined to serve its worst impulses until it becomes utterly irrelevant.

  2. [2] 
    fstanley wrote:

    Good background on the Supreme Court and its place in the government.

    It is impossible to live and work in a vacuum, and the GOP needs to remember that people always bring their life experience to their occupation if they want to win elections.

    I agree with your #6 TP. It is unfair the union members are expected to give up benefits they have spent years fighting for while overpaid bankers/stockbrokers are not being asked to give up anything of importance.

    ...Stan

  3. [3] 
    Michale wrote:

    @CW

    What about all those "up or down vote" quotes?

    Yes, Democrats. What about those UP or DOWN votes that you fought tooth and nail when you were the minority party with a Republican President???

    You seemed to think back then that they were Satan's Spawn, now you want to embrace them??

    Please explain to me, Democrats, how your hypocrisy is any different than the Republican's hypocrisy??? :D

    Judicial activism is in the eye of the beholder

    Judicial Activism is a double-edged sword. The problem *I* have with Judicial Activists are such based on their own personal biases and prejudices rather than being an activist in the best interests of the country..

    United Nations calls for American Truth Commission

    BWABWABWABWABAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!!

    Now THAT is a good one.. The UN calls for a "Truth Commission".... That's like Adolf Hitler or Josef Stalin calling for a Genocide Commission.

    The UN is *THE* most corrupt, dishonest and self-serving entity on the planet, BAR NONE...

    The UN asking for a "Truth Commission" definitely comes under the heading of "You can't make this stuff up!"...

    Give Wall Street the deal the autoworkers just got

    The Auto Workers just got 20% of the company in exchange for campaign donations to Democrats..

    Where is the outrage??

    Pelosi Galore update

    Well, since Pelosi ran away and hid in China to escape her lies and accusations and the facts that Democrats STILL support her is not surprising in the least...

    @Osborne

    1) She's a racist

    She may or may not be a racist. It is an undeniable fact that she has made at least one racist statement. Such a statement coming from a Republican and you et al would have been screaming and whining bloody murder..

    So why bitch and moan when the Republicans react in the same way???

    Put it together, and you have a political party determined to serve its worst impulses until it becomes utterly irrelevant.

    Look up the term, "wishcasting".. :D

    You can bet that, in a few years when Democrats are back to being the minority and can't get elected as a dog-catcher again, I'll be around to remind you of the "irrelevant" GOP... :D

    Michale.....

  4. [4] 
    Elizabeth Miller wrote:

    Michale,

    I don't think any of us will be around to remind anyone of anything when the Democrats finally get around to being the minority party - of any branch of government!

    Matt,

    Hasn't the Republican Party become utterly irrelevant, YET!?

  5. [5] 
    nypoet22 wrote:

    cross-posted at huffpo:

    numbers 3 and 4 are really the best here. i spotted a few great one-liners in your opening that weren't even included as part of the talking point:

    1. "No such thing" - courts are not even capable of being activist, they can only rule on the cases other people bring before them. that is "passive by definition." there's no such thing as "judicial activism."

    2. "as the Founders intended it" - the founders knew there would be executives and legislators who pushed the limits of their power, which is why they gave the judicial branch the power to push back. it is not only acceptable for judges to make rulings that change the way laws are interpreted, it is their sacred duty handed down by the framers of the constitution.

    3. "judges interpret laws every day" - conservatives trying to criticize judges for doing what judges always do and always have done is frankly just sour grapes over decisions they don't like.

  6. [6] 
    Osborne Ink wrote:

    Elizabeth, Republicans are clinging to relevance by their fingernails. They've obviously decided that affirmative action is a wedge issue they can hammer in 2010.

  7. [7] 
    Michale wrote:

    @Liz & Osborne

    Like I said, I'll be around in a few years to remind ya'all of your words.. :D

    Michale.....

  8. [8] 
    Michale wrote:

    @Osborne

    They've obviously decided that affirmative action is a wedge issue they can hammer in 2010.

    So, you agree with race or ethnic based criteria???

    How is this not racism??

    Michale....

  9. [9] 
    nypoet22 wrote:

    i don't think it's racist to place a value on diversity. it shouldn't be the only criterion, nor the most important, but desiring ethnic and gender diversity is not inherently racist or sexist. as a white, heterosexual man, i realize that i have a few advantages in our society's power structure. although it may have lost me a job at some point, i at least recognize that bringing people of different backgrounds together can be a source of strength that isn't measured by traditional hiring criteria.

  10. [10] 
    Michale wrote:

    @nypoet22

    If you have two people who are equally qualified for a job and one get's the position solely based on race, that is racism...

    Encouraging diversity and bringing people of different backgrounds together is an admirable and worthy goal.

    FORCING diversity and FORCING people of different backgrounds to be together, solely based on race, is racism.

    Michale.....

  11. [11] 
    Osborne Ink wrote:

    (I don't speak to trolls)

  12. [12] 
    Michale wrote:

    @Osborne

    Thank you for your concession that you have no logical or rational counter to my argument and must, therefore, resort to childish and immature name-calling.

    Your concession of my superiority is appreciated albeit irrelevant.

    Michale.....

  13. [13] 
    Osborne Ink wrote:

    (Still not speaking to the troll.)

  14. [14] 
    Elizabeth Miller wrote:

    Okay, you two...time to shake.

    Hey, the last thing we want to do around here is cut the conversation short!

  15. [15] 
    Michale wrote:

    @Liz

    Since Osborne has conceded the argument, what is there left to say? :D

    Basically that response is the Liberal's version of sticking one's fingers in one's ears and saying, "Nyaaa Nyaaa I'm not listening to you, Nyaaa Nyaaa I'm not listening to you "... :D

    Michale.....

  16. [16] 
    nypoet22 wrote:

    sorry for not responding myself (end of the marking period grading cruch), but i do not agree with the way michale defines racism, as any decision in which race or ethnicity is used as one of the criteria. it's generally not defined that way. nor do i agree that refusing to argue necessarily constitutes a concession of any debating points. this is a blog, and people sometimes have other things to do beside sit around and deconstruct arguments they disagree with and why they disagree. racism is the belief that one race is superior to another, or discriminating against someone based on that assumption. i don't think affirmative action fits that definition.

    as a doctor of psychology, my professional interpretation of existing research is that there is substantial evidence of a pervasive cultural bias in favor of white males, a de-facto racism already present in most hiring decisions. affirmative action is an attempt to balance the inherent bias of the system, not create a different one. this may not always work out in a perfectly fair manner, but i posit that it would be more racist to pretend that other criteria were measured equally.

  17. [17] 
    Osborne Ink wrote:
  18. [18] 
    nypoet22 wrote:

    osborne:

    michale is not a conservative troll, just a conservative. if you look at his comments far enough back, you'll be aware he supports much of what the president is doing, even if those aren't the same things we would want obama to do. frankly, that's just not trollish enough for me to buy that as a possibility.

    on the topic of judge sotomayor, there are two questions relevant to the current line of thought:

    1. is there anything wrong with the idea of affirmative action? (this one i addressed above)

    and

    2. is sotomayor's appointment an example of affirmative action or not?

    to this i would answer no as well. my guess is that michale would answer yes on at least one of the above. there is an implicit assumption in much of our society that the most qualified candidates will be white and/or male, but the more i hear of this woman the more i think her race and gender were at most tangential to her nomination. affirmative action aside, she's quite possibly the most qualified candidate for the supreme court in recent history.

  19. [19] 
    Michale wrote:

    @nypoet

    as any decision in which race or ethnicity is used as one of the criteria

    Actually, it's not my definition, it's the dictionary definition..


    rac⋅ism  /ˈreɪsɪzəm/
    –noun
    1. a belief or doctrine that inherent differences among the various human races determine cultural or individual achievement, usually involving the idea that one's own race is superior and has the right to rule others.

    http://dictionary.reference.com/browse/racism

    Anytime race is used as a determinative factor that is, by definition, racism.

    Now, like I said. I am not saying that Sotomayor is a racist. From all other indications, she is not.

    But she DID make a racist statement. This is fact. A statement that, if made by a white Republican male, would have resulted in a clamor from the hysterical Left loud enough to be heard to the moon.. (Yea, CW.. I KNOW.. Sound doesn't travel in space.. :D)

    nor do i agree that refusing to argue necessarily constitutes a concession of any debating points.

    Who said anything about arguing? If a person cannot respond to a discussion with anything but childish and immature insults and name-calling, obviously that person has not other argument.

    Further, I am constrained to point out that, in a formal debate, if one party states their position on the question and provides facts to support the claim and the other party merely responds with, "Neener Neener Neener!! I'm not listening to you!!" who do you think would win the debate??

    I rest my case on THAT issue...

    michale is not a conservative troll, just a conservative.

    Actually, with a few exceptions (four to be exact) I am probably more liberal than you are. :D

    1. is there anything wrong with the idea of affirmative action? (this one i addressed above)

    I think ANY criteria based on race is a bad idea. And I am surprised that anyone here would feel differently...

    2. is sotomayor's appointment an example of affirmative action or not?

    No, I don't think it is. I think it's an example of political maneuvering by the Obama Administration. President Obama is learning the political game quite well... Sadly...

    she's quite possibly the most qualified candidate for the supreme court in recent history.

    Possibly..

    And yet, there is STILL the **fact** of that racist statement she made and the hypocrisy from the Left that if it had been a BUSH nominee (White Male Republican) the Left would have been screaming bloody murder.

    I have YET to hear anyone address this without the mealy-mouthed political condescension equivalent of "She really didn't say it"

    Michale.....

  20. [20] 
    Elizabeth Miller wrote:

    Michale,

    I noticed you couched the term 'fact' within a set of a couple of asterisks.

    Does this mean that you do not believe that statement made by Judge Sotomayor was a "racist" one?

  21. [21] 
    Michale wrote:

    @Liz

    Does this mean that you do not believe that statement made by Judge Sotomayor was a "racist" one?

    The statement WAS racist, pure and simple. This is an indisputable fact.

    My position is that, in and of itself, it doesn't indicate that Sotomayor is a racist.

    It simply means that she made a racist statement and, as far as I know, hasn't tried to apologize for it and has, to date, stood behind the statement.

    I ask, again, to consider the hysterical outcry if a white Republican male had made the same sort of racist statement. Would the Left ignore the statement of pooh-pooh it away??

    Of course not..

    Ergo, the Left's position on Sotomayor's statement is nothing but hypocrisy and political bigotry.

    Michale.....

  22. [22] 
    BashiBazouk wrote:

    But she DID make a racist statement. This is fact.

    Wrong. As usual your use of "fact" does not meet the definition.

    fact
      /fækt/ Show Spelled Pronunciation [fakt] Show IPA
    –noun
    1. something that actually exists; reality; truth: Your fears have no basis in fact.
    2. something known to exist or to have happened: Space travel is now a fact.
    3. a truth known by actual experience or observation; something known to be true: Scientists gather facts about plant growth.
    4. something said to be true or supposed to have happened: The facts given by the witness are highly questionable.
    5. Law. Often, facts. an actual or alleged event or circumstance, as distinguished from its legal effect or consequence. Compare question of fact, question of law.

    oâ‹…pinâ‹…ion
      /əˈpɪnyən/ Show Spelled Pronunciation [uh-pin-yuhn] Show IPA
    –noun
    1. a belief or judgment that rests on grounds insufficient to produce complete certainty.
    2. a personal view, attitude, or appraisal.
    3. the formal expression of a professional judgment: to ask for a second medical opinion.
    4. Law. the formal statement by a judge or court of the reasoning and the principles of law used in reaching a decision of a case.
    5. a judgment or estimate of a person or thing with respect to character, merit, etc.: to forfeit someone's good opinion.
    6. a favorable estimate; esteem: I haven't much of an opinion of him.

    The Fact is she said X. That X is racist is an opinion.

  23. [23] 
    Elizabeth Miller wrote:

    Michale,

    Anyone who would publically call that statement ‘racist’ - in or out of context...it’s fairly contextual as is - is, I would suggest, either hypersensitive or insecure...or, a dangerous combination of both.

    But, the next time a white male Republican or...ahem...a wise, white male says something about being capable of making a better judgement (in the judicial sense) based on his own long and unique experience and privileged position in life (or the...judiciary), knowing full well that out of the one hundred or so supremes that have graced the Court 96%+ have been of the white male variety, well...I’ll be sure and pounce on that like white on rice!!

    :-)

    Although, we should be very careful about using sweeping generalizations when referring to ‘wise white males’...if you know what I mean, and I’m sure that you do!

    :-)

  24. [24] 
    Osborne Ink wrote:

    nypoet,

    "FORCING diversity and FORCING people of different backgrounds to be together, solely based on race, is racism."

    It's an interesting argument, isn't it? That racists aren't upset that racism is illegal, they're upset that they have to live and work and send their children to school alongside other races.

    They just want the freedom to act like racist assholes, is all.

    To enforce the laws of the land through deeds instead of words (AKA "Affirmative Action") is unjust: "If you make me stop acting like a racist shit, then YOU are the racist shit!"

    Stunning. A candidate for Teh Stupidâ„¢ Hall of Fame, right alongside I'm rubber, you're glue...

  25. [25] 
    Michale wrote:

    @Bashi

    The Fact is she said X. That X is racist is an opinion.

    Sorry, you are wrong.

    When you look at the definition of "racism", her statement is clearly racist as it (the statement) purports imagined superiority by one race segment of the population over another race segment. That is the very definition of racism.

    One can also say that the comment was sexist as well, but we're talking about race right now.

    So, Sotomayer making the statement IS a fact.

    And the statement being racist IS also a fact. As I have clearly proven.

    @Liz

    Anyone who would publically call that statement ‘racist’ - in or out of context…it’s fairly contextual as is - is, I would suggest, either hypersensitive or insecure…or, a dangerous combination of both.

    It's a racist statement. Period. No amount of Left wing spin will change that simple fact. You want to accuse the GOP of being hypersensitive, feel free. But you must admit that the Left would be MUCH more hypersensitive about the same sort of statement from a white GOP male, no?? Hypersensitivity to serve a political agenda is by no means only a GOP problem. One only needs to recall how Democrats screamed "VOTER INTIMIDATION!!!!" during the 2000 Presidential Elections in Florida because a police car was parked about a mile from a polling station. Rather ironic when one considers that you had a uniformed and armed militant Black Panther actually blocking access to a polling station in PA and Democrats just let that one slide..

    So, do you REALLY want to talk "hypersensitive" vis a vis Democrats & Republicans?? Because there are THOUSANDS of examples of how royally whacked Democrats are when it comes to feigned hypersensitivity...

    @Osborne

    "FORCING diversity and FORCING people of different backgrounds to be together, solely based on race, is racism."

    It's an interesting argument, isn't it? That racists aren't upset that racism is illegal, they're upset that they have to live and work and send their children to school alongside other races.

    So, you have decided to enter the discussion. Good for you.... :D

    How you got your conclusion from my statement is beyond me.

    Once again, please support your claim that race based criteria is not inherently racist.

    Can you do that??

    No???

    Didn't think so...

    Michale.....

  26. [26] 
    BashiBazouk wrote:

    Sorry, you are wrong.

    Ah, no I am not.

    The Fact is she said something. It is a fact because it was recorded in some way and we know she said these particular words in this particular order at this particular time.

    Any conjecture as to the meaning of those words, no matter how widely held is an opinion.

    These are called the rules of the english language. I'm not making them up.

    Also, your definition of racism is questionable. The dictionary you linked to had two other possible definitions. Why did you not include them? Did they not support your argument? Cross reference those definitions with other dictionaries and you will notice quite a difference between them and not all of them support your argument as well as you might like. Racism as a word is in flux. There is currently no concrete definition.

    And the statement being racist IS also a fact. As I have clearly proven.

    Only if we are not communicating in english. You very will could be "right" and it would still not be a fact. As fact as a word, unlike racism, does have very concrete definitions and your use of the word consistently ignores all of them.

  27. [27] 
    Michale wrote:

    Any conjecture as to the meaning of those words, no matter how widely held is an opinion.

    A news flash for ya, Cupcake. :D Words do have definitive meanings and many of those words/meanings are not open to interpretation or opinion..

    Example:

    "White people work much harder than black people."

    "Black people are physically stronger than white people.

    "Oriental people are smarter than white people."

    "A Latin woman has more wisdom than a white male."

    Those are all examples of racist statements. None of them are open to interpretation or "opinion".

    You can dance around the definition of "is" all you want..

    But the facts trump the dance...

    Michale.....

  28. [28] 
    BashiBazouk wrote:

    Cupcake?

    Have we entered in to some sort of bizzaro land? Or is this a poor attempt to belittle me by use of a colloquialism?

    Facts are facts. All those sayings are considered racist. That they are considered racist are still not facts. An opinion can be accepted as fact and still not be a fact.

    Also, none of them are direct quotes of Sonia Sotomayor. I do not see how they are relevant.

    You try to "win" debates by defining your points as facts. Even though you will use all caps or even bold the letters, just because you say something is a fact, does not make it so.

    You can dance around the definition of "is" all you want..

    Is that more like a waltz or a jig?

    Or are we descending in to some sort of colloquial gibberish?

    But the facts trump the dance…

    definitely the later...

  29. [29] 
    Michale wrote:

    Have we entered in to some sort of bizzaro land? Or is this a poor attempt to belittle me by use of a colloquialism?

    It was a joke.. Hence the ':D'.. Yes, I have a bizzarro sense of humor.. :D

    Facts are facts. All those sayings are considered racist. That they are considered racist are still not facts. An opinion can be accepted as fact and still not be a fact.

    OK, we'll play your game..

    All Hispanics are lazy.

    An opinion can be accepted as fact and still not be a fact.

    "A difference which makes no difference IS no difference."
    -Commander Spock

    If an opinion is accepted as a fact, then it becomes a fact. An opinion, like a hypotheses, CAN be proven as factual..

    Ergo, if the statement, "a wise Latina woman (which is kinda redundant) can make judicial decisions better than a wise white male" is opinioned to be a racist statement and that opinion is accepted as fact, then the opinion becomes a de-facto fact.

    In short, you are trying to defend a racist statement as NOT being a racist statement when, in fact, it is...

    But hay.. let's play your game...

    Explain exactly how that is NOT a racist statement?

    Sotomayor expressed an opinion of superiority based on racial criteria. That is the very DEFINITION of racist.

    I would be very interested to hear your spin on how that statement can be anything BUT a racist statement.

    Have at it.. :D

    Michale.....

  30. [30] 
    nypoet22 wrote:

    have either of you read the whole speech? the quote in its context does not imply superiority at all. it's about a set of experiences and how they make different judges better-prepared for different cases. unless you mean superiority in the sense that a cardiologist might be superior to a dermatologist when dealing with a heart condition, but not with a skin condition, because that's not what the dictionary meant.

    she is not deeming hispanic women as a group to be superior to white men as a group, which is the sense of superiority that the dictionary is referring to. that's the intended implication of people who call her racist for the speech from which that sentence is snipped, but it's simply not what she was talking about.

  31. [31] 
    BashiBazouk wrote:

    I finally read the complete quote and surrounding context. It really is bizzaro land. I can see how many would deem it racist, and I respect that opinion as it certainly has a kind of a racist edge or feel to it without being blatantly so. But it is so strangely worded that it could just as easily be deemed not racist at all or inconsequently so. I think only Sonia Sotomayor knows for certain.

    I was purely arguing the mechanics of language. And a particular piece of it to which Michale abuses in many arguments I have read of his. Whether or not the quote was racist was immaterial to the point I was trying to make.

  32. [32] 
    Michale wrote:

    @nypoet22

    The use of the word "better" in the context of her quote is what qualifies the comment as racist.
    If she was trying to give a sense of HER personal superiority (as you seem to imply) then why bring her race, or any race, into the discussion? By virtue of the fact that she stated her race (and possibly gender) would be superior to another race/gender, she was clearly making a racist comment and possibly a sexist comment as well.. The statement of superiority ("better") of one race over another is the very definition of racist.

    If a Republican nominee made this statement....

    "I would hope that a Caucasian man with the richness of his experience would more often than not reach a better conclusion than a black female who hasn’t lived that life."

    .... the entire Left would be screaming "RACIST!!!" from the rafters and everyone here knows it.

    That's been my whole point. The hypocrisy of the Left on display once again for all to see..

    @Bashi

    I was purely arguing the mechanics of language

    Ahhhh So we WERE trying to decide what the meaning of 'is' is... :D

    Michale.....

  33. [33] 
    nypoet22 wrote:

    If she was trying to give a sense of HER personal superiority (as you seem to imply) then why bring her race, or any race, into the discussion?

    because we happen to live in a culture that is still quite racist, and many people, based on race alone, would not believe that the experiences of ONE hispanic woman might happen to make her slightly better suited for a job than ONE similarly accomplished white male. in my view, she's simply affirming that it might, in the face of a mainstream culture that still seems to think otherwise.

  34. [34] 
    Michale wrote:

    because we happen to live in a culture that is still quite racist

    So, you agree that Sotomayor made a racist statement, playing to her hispanic audience...

    If this is what you are saying, then we are agreed..

    Sotomayor made a racist statement "because we happen to live in a culture that is still quite racist"...

    So, let me ask..

    If a white Republican male made the corresponding statement, would you slam that Republican male for making a racist statement??

    Of course you would...

    So, why do you feel the need to explain or mitigate Sotomayor's racist statement when you wouldn't if a Republican make made the same contextual statement??

    Michale.....

  35. [35] 
    Michale wrote:

    But do you see the interesting morphing of the argument??

    Ya'all have gone from, "It's not a racist statement" to "It's OK because "we happen to live in a culture that is still quite racist"

    From all appearances, it seems to be perfectly OK if racism comes from the Left, but it's NOT ok if racism comes from the Right.

    Can you explain this blatant hypocrisy to me??

    Michale.....

  36. [36] 
    nypoet22 wrote:

    no michale, i do not agree with you, and you can call her statement racist all you want, but that won't make it so. since i disagree with you on that point, i can't comment on your claim of hypocrisy. contrary to your assertion, my argument has remained constant: it is not a racist statement because the individual making it (judge sotomayor) and the context in which it was stated (seeking equality within a racist society) imply neither racial superiority, nor the right to rule over other races.

    you seem to think a statement can be defined as racist independently of the identity or intent of the speaker. if this is your belief, we fundamentally disagree.

  37. [37] 
    Michale wrote:

    you seem to think a statement can be defined as racist independently of the identity or intent of the speaker. if this is your belief, we fundamentally disagree.

    So, if Ghandi made a claim that "black people are lazy and worthless" then it would not be a racist comment because, of course, Ghandi would NEVER made a racist comment?

    Is THAT the argument you are putting forth?

    A racist statement is a racist statement is a racist statement. REGARDLESS of WHO is speaking it, HOW it was spoken or in what context it was spoken..

    A racist statement is a racist statement is a racist statement.

    Context or spin is completely irrelevant...

    A racist statement is a racist statement is a racist statement.

    The simple fact (which no one has argued) that ya'all would scream RACIST if a white Republican male had uttered a similar comment should be enough to convince any one of the bias of ya'alls argument...

    Michale.....

  38. [38] 
    nypoet22 wrote:

    yes, there exist certain statements that would be considered racist no matter who uttered them. however, the fact that those statements would be racist depends on a consensus view. the statement in question, on the other hand, is far too ambivalent in its meaning and context to be considered racist even by "more people than not."

  39. [39] 
    Michale wrote:

    on the other hand, is far too ambivalent in its meaning and context to be considered racist even by "more people than not."

    The statement's only ambivalence comes from the fact that it was uttered by President Obama's SCOTUS nominee and your "more people than not" would be determined by what kind of people you ask..

    I would wager (although I am not sure where to fairly put the question) that if you were to put the question to 1000 completely neutral people, the vast majority of them would say that the statement is racist...

    Consider these 4 statements:

    1. "I would hope that a black man with the richness of his experience would more often than not reach a better conclusion than a white male who hasn’t lived that life."

    2. "I would hope that a Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life."

    3. "I would hope that a white woman with the richness of her experience would more often than not reach a better conclusion than a black male who hasn’t lived that life."

    4. "I would hope that a white man with the richness of his experience would more often than not reach a better conclusion than a hispanic female who hasn’t lived that life."

    Regardless of who says them or in what context, each of those statements would be considered by a normal person to be racist statements.

    Michale.....

  40. [40] 
    nypoet22 wrote:

    I would wager (although I am not sure where to fairly put the question) that if you were to put the question to 1000 completely neutral people, the vast majority of them would say that the statement is racist…

    that's just it, though. until you have empirical data to show a consensus, it's all just conjecture based on your own interpretation. i'll take the wager though, 1000 quatloos says you can't produce the data without skewing your sample. let's settle this by taking this into the realm of actual fact rather than assumption of fact.

  41. [41] 
    Michale wrote:

    OK, let me start with you..

    1. "I would hope that a black man with the richness of his experience would more often than not reach a better conclusion than a white male who hasn’t lived that life."

    2. "I would hope that a Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life."

    3. "I would hope that a white woman with the richness of her experience would more often than not reach a better conclusion than a black male who hasn’t lived that life."

    4. "I would hope that a white man with the richness of his experience would more often than not reach a better conclusion than a hispanic female who hasn’t lived that life."

    Would you consider ANY of the afore statements to be racist??

    Michale.....

  42. [42] 
    nypoet22 wrote:

    as a kneejerk reaction one might label any of the above comments racist, but the purely rational answer in all four cases is, "it depends on the beliefs being espoused by the person saying it." three and four are much more likely to be racist than 1 or 2, though theoretically any of them might or might not be, if you're imaginative enough about the context in which they're stated.

    but then, we haven't yet formed operational criteria for deciding what questions must be asked, or whose opinion counts.

    on a side note, thank you for helping me become more precise in my own understanding of what racism is. i still find your opinion incorrect, but i appreciate the challenge of exploring what it means objectively, not just by intuition. i still disagree with you, but i appreciate the understanding you've incited.

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