I agree, Cap. We deserve better than Terrell Owens! Ummm . . . or did you mean something else by that cryptic remark?
SCOTUS pick: Sonia Sotomayor
- Thread starter Kenscollick
- Start date
Help Support MartinLogan Audio Owners Forum:
I agree, Cap. We deserve better than Terrell Owens! Ummm . . . or did you mean something else by that cryptic remark?
Rich, once again you go straight to the heart of the matter. Anyone who states -- let alone thinks -- that Justice Sotomayor had a "60% reversal rate" -- just has no idea about statistics. The quote: "Figures don't lie, but liars figure" comes to mind.
Maybe some folks have just been drinking a little bit too much of the Rush Limbaugh kool-aid.
it is even more ridiculous that the republicans started screeching their opposition to President Obama's choice for the SCOTUS even before any selection was announced.
Now THAT is just way beyond the pale...and I think how deeply lost and misguided they have become. Laughable, true. But also sad...Whatever the hell happened to statesmanship? Seems a lost art far too often.
Last edited:
Ken,
I agree that it is appropriate to discuss politics in the off-topic area, with the understanding, of course, that not everyone is going to agree with your political viewpoint. Unfortunately, that is not really what you did. Rather than providing any "discussion" of your own, you just cut and pasted someone else's highly partisan thoughts and posted them, then abandoned the thread while others engaged in the discussion. That makes it look like your goal was simply to stir up shit.
You state that you don't believe that she is a good candidate for the job, yet you still haven't stated any reasons why you personally feel that way. Is it just that anyone who has a liberal outlook isn't fit to be a Supreme Court Justice? Or are there particular qualifications that you feel are necessary for the job that she lacks? Or perhaps there are cases in her extensive history as a federal Appellate judge where she reached a conclusion that was so outside the bounds of reason and law that you think should disqualify her?
As you said, the decision to appoint someone to the Supreme Court is a serious and important decision. I would think, then, that as a politically active conservative you would want to provide a well-reasoned, logical analysis of why this person is not fit for the job in your eyes. So far, you have failed to do so. But don't feel bad, your conservative leaders have also failed to do the same.
Just out of curiosity, if it is shown that Dick Cheney did indeed violate the law by ordering that information be withheld from Congress, do you think he should be arrested and tried? I'm just wondering if all that talk about the Constitution and separation of powers only applies to democrats.
Given that the hearings on the prospective new Justice will begin tomorrow, I thought it might be useful to initiate a discussion of a case that will likely figure prominently in the process . . . City of New Haven v. Ricci. Sotomayor sided with the City while she served on the Federal Court of Appeals (the court immediately below the Supreme Court).
First, while I am a lawyer, I am not an expert in employment discrimination law, though I am reasonably conversant with its basic principles. Second, I am a political liberal, but that fact is really not relevant to a discussion of the legal issues in that case.
Ricci filed suit, complaining that the City of New Haven had improperly thrown out the results of (I believe) a lieutenant's exam. Why did the City decide to throw out the results? Well, it seems that no African-Americans passed the exam.
Under Title VII of the Civil Rights Act, there are two basic ways to prove discrimination. First, and most obvious, is a "disparate treatment" case. In this form of discrimination, it is incumbent on the plaintiff to prove that the defendant was denied the job (or promotion) on account of his race (or gender, or national origin, etc.). Said differently, there must be proof that the defendant intended to discriminate against the plaintiff.
Alternatively, a plaintiff may argue "adverse impact". In this kind of case, the plaintiff does not have to prove that the defendant intended to discriminate; rather, the plaintiff has to prove that the defendant has adopted some facially neutral policy (or test) that has the unintended consequence of disproportionately excluding members of a protected class. Let me illustrate. Assume your company needed some people to do heavy lifting on the loading dock. Common sense would suggest that you need pretty hefty people to repetitively lift 40 - 50 lb. boxes. So, you put an ad in the paper seeking applications from individuals who weigh, minimally, 185. Well, you didn't intend to discriminate on some unlawful basis (it isn't unlawful to discriminate against skinny people), but it is clear that your facially neutral policy has the unintended effect of excluding women. There is actually a mathematical test for determining when a test disproportionately excludes. It works like this. You first take the % of women who "pass" the test (who weigh > 185). Let's assume it is 20%. You then examine the passage rate for everyone else (men). Let's assume that that number is 60%. If the first number is less than 4/5 of the second, the test is said to disproportionately exclude (and have an "adverse impact").
Once the plaintiff proves that the test does so exclude, the defendant/employer may defend the test by arguing that it is justified under the concept of business necessity. To prove business necessity, there must be evidence that the exam is sufficiently narrow so as not to exclude potentially qualified applicants. Well, since there would doubtless be some people under 185 who can lift heavy boxes, the test fails under the business necessity rule. The better solution would be to subject all applicants to the tasks he/she would have to do on the job (like lifting).
Applied to the Ricci case, the City's attorney was concerned that the test might be challenged as having an adverse impact. And, I suspect, he had doubts as to whether the test was sufficiently well designed to prove that it did not exclude those who might be able to do the job well. In short, he was worried about being sued - successfully.
Of course, while he engaged in conduct that protected the City from a claim of adverse impact, his decision exposed the City to a claim of disparate treatment (filed by those who passed the test who argued that the City was guilty of intending to discriminate). So, the City was in a pretty tough spot (since, whatever it did, it might be sued).
The Court of Appeals held that the City attorney was within his rights to throw out the exam in order to guard against an adverse impact case. The Supreme Court reversed and held that the City would have had to have been much more certain of its liability under adverse impact principles in order to justify discriminating against those who passed.
So, while you will hear the case being used by those on the left and right as fodder to feed their respective agendas, it is (I hope) useful to consider the issues less emotionally, more rationally, and more attuned to the legal principles that underly it.
For those with a better understanding of Title VII, please feel free to call me out if I am in error in any of my comments.
First, while I am a lawyer, I am not an expert in employment discrimination law, though I am reasonably conversant with its basic principles. Second, I am a political liberal, but that fact is really not relevant to a discussion of the legal issues in that case.
Ricci filed suit, complaining that the City of New Haven had improperly thrown out the results of (I believe) a lieutenant's exam. Why did the City decide to throw out the results? Well, it seems that no African-Americans passed the exam.
Under Title VII of the Civil Rights Act, there are two basic ways to prove discrimination. First, and most obvious, is a "disparate treatment" case. In this form of discrimination, it is incumbent on the plaintiff to prove that the defendant was denied the job (or promotion) on account of his race (or gender, or national origin, etc.). Said differently, there must be proof that the defendant intended to discriminate against the plaintiff.
Alternatively, a plaintiff may argue "adverse impact". In this kind of case, the plaintiff does not have to prove that the defendant intended to discriminate; rather, the plaintiff has to prove that the defendant has adopted some facially neutral policy (or test) that has the unintended consequence of disproportionately excluding members of a protected class. Let me illustrate. Assume your company needed some people to do heavy lifting on the loading dock. Common sense would suggest that you need pretty hefty people to repetitively lift 40 - 50 lb. boxes. So, you put an ad in the paper seeking applications from individuals who weigh, minimally, 185. Well, you didn't intend to discriminate on some unlawful basis (it isn't unlawful to discriminate against skinny people), but it is clear that your facially neutral policy has the unintended effect of excluding women. There is actually a mathematical test for determining when a test disproportionately excludes. It works like this. You first take the % of women who "pass" the test (who weigh > 185). Let's assume it is 20%. You then examine the passage rate for everyone else (men). Let's assume that that number is 60%. If the first number is less than 4/5 of the second, the test is said to disproportionately exclude (and have an "adverse impact").
Once the plaintiff proves that the test does so exclude, the defendant/employer may defend the test by arguing that it is justified under the concept of business necessity. To prove business necessity, there must be evidence that the exam is sufficiently narrow so as not to exclude potentially qualified applicants. Well, since there would doubtless be some people under 185 who can lift heavy boxes, the test fails under the business necessity rule. The better solution would be to subject all applicants to the tasks he/she would have to do on the job (like lifting).
Applied to the Ricci case, the City's attorney was concerned that the test might be challenged as having an adverse impact. And, I suspect, he had doubts as to whether the test was sufficiently well designed to prove that it did not exclude those who might be able to do the job well. In short, he was worried about being sued - successfully.
Of course, while he engaged in conduct that protected the City from a claim of adverse impact, his decision exposed the City to a claim of disparate treatment (filed by those who passed the test who argued that the City was guilty of intending to discriminate). So, the City was in a pretty tough spot (since, whatever it did, it might be sued).
The Court of Appeals held that the City attorney was within his rights to throw out the exam in order to guard against an adverse impact case. The Supreme Court reversed and held that the City would have had to have been much more certain of its liability under adverse impact principles in order to justify discriminating against those who passed.
So, while you will hear the case being used by those on the left and right as fodder to feed their respective agendas, it is (I hope) useful to consider the issues less emotionally, more rationally, and more attuned to the legal principles that underly it.
For those with a better understanding of Title VII, please feel free to call me out if I am in error in any of my comments.
Excellent discussion, Bahamaman. For those who want to actually read the Supreme Court decision in its entirety and try to understand both the issues involved in this case and the complexity facing a Supreme Court Justice in interpreting the law, the entire decision is available here:
Ricci v. DeStefano
I highly recommend you read both the majority opinion and the dissenting opinion. Then you can try to explain why Sotomayor's decision in this case was right or wrong. From my reading of the case, it appears that the majority made up law out of whole cloth in order to reach a predetermined conclusion. They certainly didn't follow the applicable legal precedent or the clear intent of Title VII as passed by Congress.
Ricci v. DeStefano
I highly recommend you read both the majority opinion and the dissenting opinion. Then you can try to explain why Sotomayor's decision in this case was right or wrong. From my reading of the case, it appears that the majority made up law out of whole cloth in order to reach a predetermined conclusion. They certainly didn't follow the applicable legal precedent or the clear intent of Title VII as passed by Congress.
repman
Well-known member
Facts whether she is the right choice or the most qualified for a seat on the supreme court dont even matter in this equation.
As I stated before because she is a Latino woman she is a shoe in.
Obama hand picked her for the simple reason he will get favor from the latino and woman voting block both very important to have
I say with she will get 82-85 votes easy.
this hearing is all for show and will not impact the predetermined outcome in the least unless she completely blows up which is unlikely since she has been in intense prep for the last few months on what and what not to say with a team of expert coaches.
oh well welcome to politics
As I stated before because she is a Latino woman she is a shoe in.
Obama hand picked her for the simple reason he will get favor from the latino and woman voting block both very important to have
I say with she will get 82-85 votes easy.
this hearing is all for show and will not impact the predetermined outcome in the least unless she completely blows up which is unlikely since she has been in intense prep for the last few months on what and what not to say with a team of expert coaches.
oh well welcome to politics
repman
Well-known member
ahhh man, Rich do you have to pick on us poor Bills fans again ......
Ditto Dave
Attachments
Sorry guys, couldn't resist. I used to love the Bills too, but lost interest in the pro game a few years back. Now I just watch the college game, and with Saban coaching my favorite team it has been quite exciting the last couple of years.
repman
Well-known member
Rich, Did you know that he may be a distant cousin to Lou Saban who at one time was head coach of the Bills
repman, I agree that her gender and race certainly played a role in the decision to choose her, but I disagree completely that her qualifications don't matter. First of all, there is no "right" choice or "most qualified" candidate for Supreme Court Justice. There are literally hundreds, if not thousands, of people, comprising every race and gender, who have sufficient qualifications to serve on the Supreme Court.
It only makes sense, then, that a President would pick from that group of qualified individuals someone who is politically-favorable. Every appointment a President makes is a political appointment by its very nature. Which is why the founding fathers required confirmation by Congress. One more check and balance added to the system. But your comment sounds like you think she could be completely unqualified and still get the job. I wholeheartedly disagree with that sentiment. If she didn't have the qualifications to allow her to excel at the job, there is no way she would be confirmed. Even with a democratic majority in the Senate.
And if you do the most cursory unbiased examination of her record as a federal Appellate Court Justice and District Court judge (seventeen years worth of experience in total in the federal judiciary), you will likely come to the conclusion that she is well qualified for the position, along with being female and hispanic.
repman
Well-known member
You misunderstood me I do not mean to imply that her credentials do not matter what I am saying is that while she has the credentials as a judge and am sure competent she may not be the best choice but it does not matter because the politics of it make her a shoe in regardless
Our Glory days Larry....... AFL Champs '64 and '65 ! but you know Cookie was somewhat of a malcontent so we'll have to wait and see with TO !
sorry to hijack the thread boys ! ......
repman
Well-known member
Our Glory days Larry....... AFL Champs '64 and '65 ! but you know Cookie was somewhat of a malcontent so we'll have to wait and see with TO !
sorry to hijack the thread boys ! ......
Aint that the truth Dave, we also had him for a second term 1972 thru 1976 the year I graduated HS (OJ and the Electric Company) he almost got the electric chair
:sad:
Ok, I understand now. And can't disagree with that statement.
Kevin
Well-known member
Sotomayor's holding in the case was that the blacks involved 'might' file a disparate-impact lawsuit, not that the blacks could win such a case or that the exam was some how biased or invalid. Based upon Gingburg's remarks, it seems the four dissenters wanted to focus on wether the city had a good reason to believe they risked a lawsuit had they given the firemen that passed the test their rightfully earned promotions. Does that seem like a good reason for supreme court justices to base their ruling? Setting aside legal lingo and just using commonsense, shouldn't the case come down to wether or not the test was fair and not wether a particular group had no members who passed it? If anything, it would seem to me that the hispanics that didn't pass the test would have the best case to somehow say the test was unfair, being that perhaps they could make the case that some of the american language didn't translate easily to their native language. And yet two of them scored high enough to pass the test. Courts shouldn't always follow past rulings, when it is clear those past rulings are wrong. If there is a law that says animals can't be abused, but courts have ruled in the past that kicking around a dog doesn't qualify as abuse, is it wrong for this legal opinion to be changed by a later court? I'm glad the fireman that rightfully earned their promotions came away with a victory, as I think this is a victory 'against' racial discrimination. If blacks were the only ones that passed the test I would feel exactly the same way.
A couple of observations. In the first quote from your post, you ask whether the issue of whether the test were fair. Under Title VII, that isn't the question (though I understand you were just wanting to set aside "legal lingo"). The question under Title VII is whether the exam was valid. By validity is meant this: did the exam both result in the recruitment of qualified individuals and was it drawn narrowly enough so as to not exclude potentially qualified applicants. Well, if the City were concerned that some of the African-Americans could perform well in a Lieutenant's capacity (notwithstanding the results of the exam), then that would bear on whether the test was valid. And, if it weren't valid, or if there were doubts as to its validity, it would be understandable if it would fear being sued.
On your second paragraph, I can only imagine what some Senators at the confirmation hearing would have said had Sotomayor chosen to ignore existing law (as dictated by the Supreme Court) and gone her own way (the chant of "judicial activism" comes to mind here). Like it or not, lower court judges are supposed to follow the lead of the Supreme Court . . . not ignore it.
On the unrelated subject of "judicial activism", a phrase that has been on the lips of many this week, I want to suggest a startling truth. Judges make law. In two ways, actually. First off, we live in a common law country, where vast amounts of law are not found in statutes coming from state or federal legislatures. Rather, large areas of the law (some of contract law, most of tort law, for example) are actually made by judges as they decide cases in these domains. So, our system takes as a given that it is perfectly acceptable for judges to make law.
Secondly, when the Constitution or a statute establishes the law in some other domain, frequently the words used are unclear, or ambiguous. A simple example: the First Amendment's guarantee of freedom of speech. Well, there is the threshold question of what constitutes speech. Certainly political speech would be included (though making such a determination is itself an act of "making law"). What about commercial speech? That is, when a company advertises is that also speech that is entitled to Constitutional protection? If it is, is it entitled to the same level of protection as political speech? What about pornography? Or yelling fire in a crowded theater? Again, when the Court rules on these issues IT IS MAKING LAW. That is what judges do.
So, I would suggest to you that the next time you hear a politician, whether Democrat or Republican say something like . . . "I just want the Justices to follow the Constitution and not be up there making law", be very afraid. Either that person is an idiot who knows nothing about the law or, conversely, is being utterly disingenuous.
What that politician is really saying is this: I don't want Justices who make choices that run counter to my own political philosophy.
If you would like to read an interesting article that reflects on this same question, you might want to check this out: http://www.time.com/time/politics/article/0,8599,1910714,00.html
Last edited:
asindc
Well-known member
Very well said, and I will add that anyone who managed to at least stumble into law school knows this.
Kevin
Well-known member
From my understanding of the case, the city of New Haven went above and beyond to make sure the test wouldn't be biased. Even going as far as hiring outside experts to make sure the exam couldn't be seen as being favorable to one race over another. The exam was given and no one afterwards complained of the test being in anyway unfair. It was only after the results, and only whites and hispanics had passed, that the question of fairness (or it's being invalid), was even raised. The city then threw out the results because of the color of the skin of those who had passed. This is racial discrimination, and thankfully, the Supreme Court agreed. It's seems that the city should have hired a whole team of experts to make sure the exam not only met it's purpose of getting the most knowledgable firemen to fill the positions it needed, but also that the exam ended up with a proportional mix of the races to pass. Good luck on getting that done. Look at all the money, time, and trouble that has had to be spent just to fill some firefighting positions. Is it no wonder our country has found itself in it's current state of trouble?
In the end, if my family is stuck in an apartment building that is in the process of burning to the ground, I don't care if the people coming to save me are black, yellow or green. I just hope they passed their firemens exam! It's seems as though some would just want to make sure the people coming to the rescue are a proportional mix of color, skill and knowledge be damned.
In the end, if my family is stuck in an apartment building that is in the process of burning to the ground, I don't care if the people coming to save me are black, yellow or green. I just hope they passed their firemens exam! It's seems as though some would just want to make sure the people coming to the rescue are a proportional mix of color, skill and knowledge be damned.
mcmd
Well-known member
Ah, a voice of reason. Well said indeed.
