Sotomayor walks back her "wise Latina" comment

[LnGrrrR]

LnGrrrR, the lawsuit argument just doesn't fly in this case. The facts were clearly on the firefighters side, except in the eyes of liberal activists.

Did you read all the precautions they took in designing the test? They invalidated the test because they didn't like the outcome!

It was not, as your simplistic reading would have, because they disliked the outcome. It's because they were afraid of a lawsuit due to disparate impact. Sotomayor specifically stated that above.

Additionally, Sotomayor was bound by precedent.

Is it your contention that EVERY judge, both in the lower courts AND Sotomayor's panel, was a liberal? What about the 5-4 decision? Are you saying that 4 of the SCOTUS Justices are wrong for disagreeing that the case should be awarded to Ricci?

It's one thing to differ on opinion. It's another to denigrate. You castigate liberals all the time for being partisan and one-sided. Can you not see the same behavior in your own actions?

[FromWayDowntown]

The irony of the complaints about the opinion in Ricci is that by deciding the issues put before her by the parties and refusing to reach for issues that might have been implicated but were not raised Judge Sotomayor exercised restraint. By deciding the issues presented in accordance with existing circuit precedent (and in many courts, procedural rules prohibit 3 judge panels from changing the broader court's precedent) Judge Sotomayor did exactly what conservatives want her to do. But because she did reach for issues, because she didn't unilaterally change precedent (which had found support in the precedent of another federal circuit), and because she did nothing other than apply the applicable and governing law to the specific and narrow issues raised by the parties, her decision in Ricci is somehow activist.

Charges of activism really strike me as ludicrously unprincipled and the fact that so many continue to buy into it's use as little other than a political buzzword is both frightening and sad.

[Wild Cobra]

You guys are refusing to address the strick scrutiny precedent not being adhered to. I highlighted this concern of Sessons'.

Adarand Constructors, Inc. v. Peña

2. All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. Pp. 212-231; 235-239.

(a) In Richmond v. J. A. Croson Co., 488 U. S. 469, a majority of the Court held that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments. While Croson did not consider what standard of review the Fifth Amendment requires for such action taken by the Federal Government, the Court's cases through Croson had established three general propositions with respect to governmental racial classifications. First, skepticism: "'Any preference based on racial or ethnic criteria must necessarily receive a most searching examination,'" Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 273-274. Second, consistency: "[T]he standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification," Croson, supra, at 494. And third, congruence: "Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment," Buckley v. Valeo, 424 U. S. 1, 93. Taken together, these propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Cons ution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny. pp. 212-225.

(b) However, a year after Croson, the Court, in Metro Broadcasting, upheld two federal race-based policies against a Fifth Amendment challenge. The Court repudiated the long-held notion that "it would be unthinkable that the same Cons ution would impose a lesser duty on the Federal Government" than it does on a State to afford equal protection of the laws, Bolling v. Sharpe, 347 U. S. 497, 500, by holding that congressionally mandated "benign" racial classifications need only satisfy intermediate scrutiny. By adopting that standard, Metro Broadcasting departed from prior cases in two significant respects. First, it turned its back on Croson's explanation that strict scrutiny of governmental racial classifications is essential because it may not always be clear that a so-called preference is in fact benign. Second, it squarely rejected one of the three propositions established by this Court's earlier cases, namely, congruence between the standards applicable to federal and state race-based action, and in doing so also undermined the other two. Pp. 225-227.

(c) The propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments protect persons, not groups. It follows from that principle that all governmental action based on race-a group classification long recognized as in most cir stances irrelevant and therefore prohibited-should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection has not been infringed. Thus, strict scrutiny is the proper standard for analysis of all racial classifications, whether imposed by a federal, state, or local actor. To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled. Pp. 227-231.

(d) The decision here makes explicit that federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest. Thus, to the extent that Fullilove held federal racial classifications to be subject to a less rigorous standard, it is no longer controlling. Requiring strict scrutiny is the best way to ensure that courts will consistently give racial classifications a detailed examination, as to both ends and means. It is not true that strict scrutiny is strict in theory, but fatal in fact. Government is not disqualified from acting in response to the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country. When race-based action is necessary to further a compelling interest, such action is within cons utional constraints if it satisfies the "narrow tailoring" test set out in this Court's previous cases. Pp. 235-237.

Strict scrutiny was not mentioned in the opinion in the Riici case that Sotamayor voted on, nor considered.

A take from wiki:

Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), is a United States Supreme Court case which held that all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under a standard of "strict scrutiny," the highest level of Supreme Court review (such classifications are cons utional only if they are narrowly tailored measures that further compelling governmental interests). Justice Sandra Day O'Connor wrote the majority opinion of the Court, which effectively overturned Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), in which the Court had created a two tiered system for analyzing racial classifications.

Another take on Adarand Constructors, Inc. v. Peña:

Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995).

Facts: Adarand Constructors (P) submitted the lowest bid to general contractor Mountain Gravel on a subcontracting job for a government highway project. The general contractor awarded the job to Gonzales Construction, a small business controlled by a “socially and economically disadvantaged” person, in order to take advantage of financial incentives for hiring such companies.

P filed suit against the Department of Transportation (D), arguing that the financial incentive for hiring such companies was uncons utional. The federal district court and Tenth Circuit found in favor of D and P appealed.

Issue: On what basis will the court determine if the provision of additional compensation for companies that award subcontracting jobs to minority owned businesses is uncons utional, in light of the Fifth Amendment Due Process clause?

Holding and Rule: Racial classifications must be analyzed under strict scrutiny standard – such classifications are cons utional only if they are narrowly tailored measures that advance compelling governmental interests.

The applicable standard of review is not determined based on which party is discriminated, but on the basis of whether there is discrimination at all. All racial classifications under the Equal Protection Clause of the Fifth Amendment are analyzed under strict scrutiny; and a Fifth Amendment classification encompasses the same analysis as Fourteenth Amendment cases.

The court held that good intentions alone are insufficient to sustain a supposedly benign racial classification. A statute of this kind inevitably is perceived to rest on the assumption that those who benefit from such a special preference are somehow less qualified purely by virtue of race. Such practices hinder rather then help race based issues. The court held that Congress must provide a reason for implementing such a spending act.

The court held that all governmental action based on race should be subject to detailed judicial scrutiny to ensure that the personal right to equal protection has not been infringed. In order to not violate the Cons ution, there must be a compelling government interest.

Dissenting (Stevens, Ginsburg): This is not a bad law – the government is trying to make right on past and current discrimination by benefiting minority-owned businesses. Such consistency, as stated in the dissent, does not help laws such as these, as all statutes, even if benign in nature, stand to fall by the wayside under strict scrutiny.

Concurring (Scalia): The government can never take a compelling interest in discriminating on the basis of race in order to make up for past discrimination.

Concurring (Thomas): These programs undermine the moral basis of equal protection.

[Wild Cobra]

Sotomayor Hearing, part 3

Sotomayor Hearing, part 4

[Cant_Be_Faded]

http://www.cnn.com/2009/POLITICS/07/...ing/index.html



Later in the article, she also admits she chose her words poorly.

So, given this statement, I'm guessing most board Republicans will still dislike her due to her ruling on Ricci? I know WC still will disagree with her confirmation due to her not being against affirmative action.

roflrofl
you didn't even listen or watch the full hearings

She in no way "walked back" on . She just clarified, and stood by the basis of what she said. Only re s took the quote at face value minus the two or three words after the term "white male".

[FromWayDowntown]

Strict scrutiny was not mentioned in the opinion in the Riici case that Sotamayor voted on, nor considered.

Curiously, your Adarand hobby-horse also wasn't mentioned in the majority opinion of the Supreme Court of the United States in Ricci.

Justice Scalia's concurring opinion cites Adarand in passing ("And of course the purportedly benign motive for the disparate-impact provisions cannot save the statute. See Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995)."); Justice Ginsburg's dissenting opinion also mentions Adarand ("By instructing employers to avoid needlessly exclusionary selection processes, le VII’s disparate-impact provision calls for a 'race-neutral means to increase minority . . . participation' -- something this Court’s equal protection precedents also encourage. See Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 238 (1995) (quoting Richmond v. J. A. Croson Co., 488 U. S. 469, 507 (1989)).").

In the context of Ricci, Adarand strikes me as a red herring. That probably explains its limited mention in the discussion of the issues presented in that case.

Nevertheless, congratulations on biting hook, line, and sinker on Senator Sessions obfuscation. You should probably send a note to his office to let him know that he's reached his target audience.

[LnGrrrR]

I don't get it. Is WC arguing about the outcome of the case now? Or just that Sotomayor's panel didn't show 'strict scrutiny' in reviewing the case?

Does he know?

[LnGrrrR]

roflrofl
you didn't even listen or watch the full hearings

She in no way "walked back" on . She just clarified, and stood by the basis of what she said. Only re s took the quote at face value minus the two or three words after the term "white male".

Read the context of my post. She walked it back, in the sense that she didn't stand up and defend it. She says she failed at conveying her message properly.

[Wild Cobra]

Nevertheless, congratulations on biting hook, line, and sinker on Senator Sessions obfuscation. You should probably send a note to his office to let him know that he's reached his target audience.

If you followed the exchange, Sessons points out that he asked her about that precedent when she was being considered for her current position, and points out that she did not do as she said she would.

Was that too hard to follow?

He clearly pointed out her lack of integrity, at a minimum.

Oh Wait... Excuse me... You liberals haven't a clue of what integrity is!

[FromWayDowntown]

If you followed the exchange, Sessons points out that he asked her about that precedent when she was being considered for her current position, and points out that she did not do as she said she would.

Was that too hard to follow?

He clearly pointed out her lack of integrity, at a minimum.

Oh Wait... Excuse me... You liberals haven't a clue of what integrity is!

Nonsense. Complete and utter nonsense.

Sessions asked her during her confirmation hearings if she would apply Adarand when the decision in Adarand was controlling in the case presented.

As the majority opinion of the Supreme Court in Ricci readily demonstrates -- and as the mere passing mentions of Adarand in the separate opinions amplifies -- Adarand was NOT controlling law in any sense in Ricci.

That wasn't true in the Supreme Court, and it wasn't true in the Court of Appeals where the issues were far more straightforward.

So, in essence, you and Sessions are arguing that she lacks integrity because she didn't manufacture some reason to apply Adarand to a case in which it was (according to a majority of the Supreme Court of the United States) not relevant.

I swear that if there were some objective definition of "judicial activism" that meant something other than "I didn't like the result in that case," I'd think that you were pissed that Judge Sotomayor showed restraint and refused to manufacture some basis to apply an irrelevant decision.

[Winehole23]

So, in essence, you and Sessions are arguing that she lacks integrity because she didn't manufacture some reason to apply Adarand to a case in which it was (according to a majority of the Supreme Court of the United States) not relevant.

I think you're giving Sen. Sessions and WC too much credit. They work backward from a result they don't like to an irrelevancy they consider authoritative because it seems to conduce to the desired result. Calling it an argument is too deferential. It's a form of question begging -- a logical fallacy. They begin with Sotomayor's lack of integrity. The argument as such never gets off the ground. Indeed, it is not even grounded, but brusquely educed from thin air, to support a foregone conclusion.

The novel test in Ricci underscores the activism of the majority.

Correct me if I'm wrong, FWD, but isn't vacatur the custom when the SC makes a new rule? Justice Ginzberg said so anyway. Was she right?

[LnGrrrR]

If you followed the exchange, Sessons points out that he asked her about that precedent when she was being considered for her current position, and points out that she did not do as she said she would.

Was that too hard to follow?

He clearly pointed out her lack of integrity, at a minimum.

Oh Wait... Excuse me... You liberals haven't a clue of what integrity is!

So, do you agree with the ruling of Sotomayor? That was your big complaint.

Sessions was complaining about a lack of diligence. Are you complaining about that too, as well as the case outcome? I think it'd be best if you tried to stick to one argument at a time.

[LnGrrrR]

Oh Wait... Excuse me... You liberals haven't a clue of what integrity is!

Really WC? You're going to pull THIS card?

Don't ever when I call Republicans stupid, or in-the-closet, or any number of derogatory terms then.

[ElNono]

Oh Wait... Excuse me... You liberals haven't a clue of what integrity is!

Republicans good, Democrats bad

[MannyIsGod]

Its funny to watch my senator try to get her in a gotcha moment and fail so miserably at it this morning. These things are such shams.

[LnGrrrR]

Did you hear about this Manny?

http://www.dailykos.com/storyonly/20...McLuhan-Moment

Pretty funny.

[JoeChalupa]

Both sides say they want diversity in the Supreme Court yet they expect all judges to think the same way?

[George Gervin's Afro]

Nonsense. Complete and utter nonsense.

Sessions asked her during her confirmation hearings if she would apply Adarand when the decision in Adarand was controlling in the case presented.

As the majority opinion of the Supreme Court in Ricci readily demonstrates -- and as the mere passing mentions of Adarand in the separate opinions amplifies -- Adarand was NOT controlling law in any sense in Ricci.

That wasn't true in the Supreme Court, and it wasn't true in the Court of Appeals where the issues were far more straightforward.

So, in essence, you and Sessions are arguing that she lacks integrity because she didn't manufacture some reason to apply Adarand to a case in which it was (according to a majority of the Supreme Court of the United States) not relevant.

I swear that if there were some objective definition of "judicial activism" that meant something other than "I didn't like the result in that case," I'd think that you were pissed that Judge Sotomayor showed restraint and refused to manufacture some basis to apply an irrelevant decision.

and wild cobra sulked away into the darkness of the night...

[jman3000]

Yeah... it's not exactly the most intelligent thing to try to argue law with a lawyer.

[George Gervin's Afro]

Yeah... it's not exactly the most intelligent thing to try to argue law with a lawyer.

Especially when your using someone else's argument.. and a wrong one at that...

nice job wc

[RandomGuy]

Whatev.... that comment was taken out of context from the word go.

Just proof as to how sound bites and snippets drive the news.

Any objective analysis of her actual judicial record, of which there is a lot of data, has shown a very even tempered thoughful record.

We all know the Republicans and their proxies in talk radio are simply playing this up for infotainment value, as pablum for the converted.

There were a couple of fair criticisms of her remarks, and the rest was simply grandstanding.

[RandomGuy]

WC thinks he knows economics/finance, and argues poorly with accoutants, thinks he knows the law and argues poorly about the law, always based on what the talking point of the moment for the GOP tells him to think/say.

He demonstrates a pattern of arguing things based on little more than his preconceived notions, an inability to think critically about data, and a constant display of intellectual dishonesty.

I used to be willing to give him some small credibility when it came to his pet cause, Global Warming Denial, but that long since evaporated. I have come to the conclusion that a great deal of the people who are so vociferous about the "Global Warming Scam" have a lot in common intellectually and integrity-wise with Holocaust deniers.

To be clear: having honest doubts about global warming/climate change whatever is not the equivalent of being anti-semetic.

I just find that the two groups display the same set of illogical failings coupled with intellectual dishonesty, and critical thinking failings.

In that WC falls readily into place with his intellectual peers.

[DarrinS]

WC thinks he knows economics/finance, and argues poorly with accoutants, thinks he knows the law and argues poorly about the law, always based on what the talking point of the moment for the GOP tells him to think/say.

He demonstrates a pattern of arguing things based on little more than his preconceived notions, an inability to think critically about data, and a constant display of intellectual dishonesty.

I used to be willing to give him some small credibility when it came to his pet cause, Global Warming Denial, but that long since evaporated. I have come to the conclusion that a great deal of the people who are so vociferous about the "Global Warming Scam" have a lot in common intellectually and integrity-wise with Holocaust deniers.

To be clear: having honest doubts about global warming/climate change whatever is not the equivalent of being anti-semetic.

I just find that the two groups display the same set of illogical failings coupled with intellectual dishonesty, and critical thinking failings.

In that WC falls readily into place with his intellectual peers.

With respect to the equating people who doubt that "global warming" is a catastrophic problem and those who are Holocaust deniers -- OFF. No, really, off.


With respect to Sonia Sotomayor, I think that one of the privileges of being POTUS is the ability to nominate the person of your choosing to SCOTUS. So, while I may not agree with her ideology, I don't think anyone has the right to block her nomination, unless she is found incompetent.

[MannyIsGod]

Darrin once again proves reading is hard.

[FromWayDowntown]

With respect to Sonia Sotomayor, I think that one of the privileges of being POTUS is the ability to nominate the person of your choosing to SCOTUS. So, while I may not agree with her ideology, I don't think anyone has the right to block her nomination, unless she is found incompetent.

I think you've misunderstood RG on his comparison. But I agree with your point about SCOTUS nominees. I might not like the judicial philosophies of jurists like Chief Justice Roberts, Justice Alito, or Justice Scalia, but I cannot quarrel with their qualifications to sit on the Supreme Court and, accordingly, see no principled basis to argue against their confirmations. Judge Sotomayor is obviously well qualified despite the contentions about her judicial philosophy and will almost certainly be confirmed despite the fact that she's not the consevative thinker the GOP wishes her to be. These hearings should be about fleshing out qualifications and not about the partisan grandstanding that now seems to be part and parcel of such proceedings, which is mostly (I think) an effort to placate partisan hacks.