Friday, May 29, 2009

GREAT DISCUSSION ON SOTOMAYOR

"Even Judge Richard Posner, a conservative stalwart on the 7th Circuit Court of Appeals once observed that, "Litigation commonly involves persons at different social distances from the judge, and the more proximate will garner the more sympathetic response regardless of actual desert."

I think the author of this piece simply raises the question of how a person's background, regardless of race will impact their decision making. The quote from Justice Posner is right on the money and honest.

I do not disagree with the above argument. My question is, why does Sotomayor believe as a Latina she has a better chance to get it right, than a white male? Yes,. white males have gotten it wrong a lot of times, but Stevens and Souter, white males, have gotten it right on minority rights a lot more often than Associate Justice Thomas, a black male. I would love a new Associate Justice who could sit down with Associate Justice and commit to validate his concerns over affirmative action, while slowing bringing him into the liberal wing of the court. The liberal wing of the Court must acknowledge that affirmative action has promoted the racist mentality of "if you are a minority you got promoted based on your minority status."

On paper Sotomayor and Thomas are more than qualified. They competed on an uneven academic field and overcame bigotry to prove their excellence. But excellence is not enough. Your character along with excellence should be the standard.

For the record, I love this author's insight into Justice Thomas. Based on his experience at the university, I fully understand why Justice Thomas feels the way he does. This is all the more reason why I oppose Sotomayor. I am looking exclusively at her character and on her character, which was Dr. King's message, she is a threat to our Constitution. I will always oppose judicial activism, regardless of the source.

http://www.cnn.com/2009/POLITICS/05/28/ifill.sotomayor/index.html

17 comments:

Anonymous said...

Yes,. white males have gotten it wrong a lot of times, but Stevens and Souter, white males, have gotten it right on minority rights a lot more often than Associate Justice Thomas, a black male.

Define "right." I think making a case on colorblind basis as Thomas does is better than your observation of Stevens and Souter. You left out Breyer btw. I am not deeply troubled by President Obama's statement the other day about Sotomoyor, "This woman is brilliant. She is qualified. I want her confirmed. I want her walking up those marble steps and starting to provide some justice." Bobby do you believe justice has been delayed some how by those very jurists you cite?

BobbyWC said...

I think the United State Supreme Court is operated with the intent of promoting the Justices ego and not justice - this goes for everyone. I always liked Souter because he tried to bring about fairer rules.

Breyer tried to have the rules to access the Court Amended to make it easier. he also tried to force shorter opinions so they can hear more cases. His ideas were rejected.

To properly have a brief prepared, not attorneys fees, just production of the brief, with guarantees it will not be rejected, a publication quarantee could easily cost you $20,000.00 - it is a joke - a complete and total joke

You have no choice but to hire a private company to produce the brief - if you do not pay the guarantee fee, if the Court rejects the brief because of improper spacing between letters - you are out all of you money.

The court has clerks which use templates to check spacing. You do not use normal paper - it is a special booklet size.

You cannot just e-mail your brief to the service - if the distance between letters changes when they open the e-mail you are screwed, which is why you have to pay for the guarantee service.

there is no justice at the supreme court.

The law clerks have an idea what the justices want to hear. Most cases are rejected by law clerks - new law school graduates -

justice is never an option before the liberal or conservative members of the supreme court

Bobby WC

Anonymous said...

You didn't fully answer the question on right or getting a judgment right. Glossing over it with personal bias and what sounds vindictive is no way to go about having a discussion over Sotomayor and the Court. But if you must, it is what it is.

If as you suppose justice is not the option how can any justice including those you cite ever reach something more right than another justice? Wouldn't perceived rightness be thrown out the window because neither side's goal is results-oriented justice, plain justice, or what have you?

There is no such thing as fairer. It's a stupid word. It's about equality or reasonableness but not fair. That's an unreasonable standard, fair is.

You might have experience with spacing issues that I just don't have. But claiming justice is never an option is a hyperbolic, inaccurate and inflammatory statement even from the likes of you.

I will posit Gideon. Gideon the person didn't have any spacing problems. Abe Fortas presented the oral argument, but it was Gideon's own handwritten appeal with basic case law and argumentation gained in a prison law "library" that was submitted to the Court.

Justice was an option then; it is still an option now. I agree being anal retentive about spacing is obnoxious as it is unreasonable. Fair or unfair isn't the issue. Is there a program or ruler one can use? Maybe there is money to be made in creating that a program and stocking up on that paper. By the way, is there any resource other than you that discusses Breyer's attempt to modernize the Court's antiquated procedure system?

I am sincerely disturbed by the Herald's editorial in support of Sotomayor. No one at the Herald knows the law. The paper is owned by Libertarians who disdain judicial activism yet because of the color of her skin and the genitalia between her legs they endorse her. Those at the editor's level know about politics and news, and even that is suspect. They openly support a judge for a position they know little about, but when it comes to endorsing candidates for office they punt the proverbial football.

BobbyWC said...

Based on your post - you have zero knowledge of the workings of he Supreme Court.

You have to use one of the publication services - even the exhibits have to be retyped to meet the standards - there is no paper you can buy.

As to the program you mention - again you prove zero knowledge of the process - any word processor will allow you to set, font type, size and letter spacing - the program aleady exists.

The problem is when you send it to the publishers the spacing can change every time it is saved and opened. This is why they reformat it and charge you - if you want the guarantee it will pass the clerks you will pay 20k plus.

"results oriented justice" is never justice - justice is following the law regardless of the result. On balance we have to rely on the law being correct.

The 14th Amendment makes no mention of 3-4 different types of equal protection tests. But yet the Court has found that depending on the facts and the parties teh government can violate your right to equal protection if the law has a rational basis - which means just about any explanation - in a handful of cases the government needs a compelling state interest to overcome violation of the equal protection clause.

This is results oriented justice - it is always wrong. Justice must be blind not results oriented.

Bobby WC

Mas Triste said...

I hope anony answers; best discussion / observations on SCOTUS I have heard in some time.

Anonymous said...

Bobby, thank you for your succinct condemnation my presumed deficiency of knowledge. I couldn't have expected anything less coming from the likes of you.

But no, you are wrong. Gideon in fact did write his own defense. The Court did grant his appeal. The Court did appoint Abe Fortas to represent him in their court. In a 9-0 ruling, Gideon and Fortas won indigents the full right of counsel. Gideon was later acquitted after Florida paid an attorney to represent him. For more information you can go here or here.

This case proves that even with my "zero knowledge" I am right; you are wrong. The Court in this instance did not turn his case away. It was about justice. Justice was blind to the typesetting or font he used. You won't provide proof other than you that Breyer worked to prevent injustice. I still don't have any proof other than you that cases are turned away. It might help your case, which is flimsy at best, if you provided more than just typed words.

As to the program I suggested, I wanted to help you get money for your lawsuit(s). Am I bad for wanting to help you? I bent over backwards to assist someone of your stature find a good business other than writing appellate briefs. I am called upon to provide a service for Brownsville by helping you to find funds to move away to the Washington D.C. area if that where you want to be.

Maybe I never finished my thought on "neither side's goal is results-oriented justice, plain justice, or what have you." I should have ended it with is ever achieved.

I am not arguing for results oriented justice. I would never do that. I am arguing that no matter what goal the particular justice is searching for. They never achieve it if as you contend justice is denied by law clerks turning briefs away on anal retentiveness and spacing errors. That was my pointed question.

Here is an explanation. You can't "have gotten it right on" anything if they are being denied justice by grammar police law clerks. Your whole premise falls flat on that alone.

The 14th Amendment makes no mention of 3-4 different types of equal protection tests.

Are you claiming the Court has no judicial review to be able to develop tests like Lemon or Miller for the 14th? Why is the 14th so special that it can't be treated equal with other amendments that have Court sanctioned and developed tests to determine constitutionality of a statute or law?

Bobby, it isn't more special. The Court has a duty to itself and the people to develop tests or bright-line points for constitutional or legal questions. Without this what is a court of appeals like Sotomayor's Second supposed to do? Are you saying they should be free to provide their own unequal brand of justice different from other circuits? Wouldn't that be self-defeating if you are calling for justice? Isn't equal protection is thrown out the window with the bathwater when you have different rules in different parts of the country? Where is justice there Bobby? [I know there are different rules being applied now by different circuits, which is why the Supreme Court sometimes steps in, but it would be worse without tests.]

BobbyWC said...

Anny, your lack of knowledge is almost overwhelming.

First where did I even address Gideon for you to say I made a mistake? This is only in the voices in your head.

Gideon was 1963 - no computers just typewriters. there were no special rules concerning font or letter spacing - your need to argue with me gets in the way of reality.

While it has been years since I researched the issue, on average 1 maybe 2 of the 80-90 cases they take a year are indigent pro se's.

The Court in 1963 is nothing like the court of today. They are not even on the same planet.

Indigent Pro Se's are not required to file under the briefing booklet rules. In fact pro se briefs are reviewed by law clerks separate from regular briefs.

The last time I researched the issue, some 8000 people filed briefs with the Court. In that year only 80 something were heard.

here are the opinions for 2009 - the term is almost over and there are a mere 60 opinions. There is no defense to this.

http://www.supremecourtus.gov/opinions/08slipopinion.html

Breyer has lecture on the need to reduce the size of the average opinion so they can get out more opinions.

How is there justice is a 5/4 opinion interpreting Congressional Intent of a criminal statute. 4 of the 9 cannot agree with the majority, but yet you and I can go to jail for not agreeing with the 5member majority.

Are you really telling my readers that the 8000 or so people who do not get heard every year are just filing frivolous appeals.

You have no knowledge of how this current court works. The Court can issue an opinion on Monday and the Court of appeals is free to ignore ignore it on Tuesday - it happens all of the time. The appellate justices know that once the Supreme Court addresses an issue it is highly unlikely it will later take up a case to reverse an appellate court on a statutory interpretation which they already resolved.

While I am certain you have read all 8000 denied writs and know for sure none of them had merit, I have not so obviously you are on better footing than I am.

Because as we all know in 1963 Gideon was submitted on a computer generated brief and not some portable typewriter - when you learn to get your facts correct and stop arguing for the sake of arguing you might be able to contribute to the discussion.

Other than attack me with stupid comments and citing one case from 1963, when computer generated fonts did not exist for common purposes how about explaining why Sotomayor's comment that justices make policy is not evidence of judicial activism?

How about addressing the issue instead of attacking me.

And for the record, there is a big difference between knowing about a hand full of cases you were taught about in high school civics and having actual working knowledge about the mechanics of the current court.

I advice nearly all of my clients they are wasting their time and money. Most have clients who cannot afford the costs of producing the briefs. They can afford the filing fee, even the lawyer, but not the production costs. Once you pay your lawyer you cannot be heard as indigent, which means you cannot be heard. The middle class as is always the case in the US is screwed.
Bobby WC

Anonymous said...

Why do you censor my comments but not the anti-cisneros comments or the anonymous comments that refer to Cuacha?

BobbyWC said...

I censor vulgarities and plain stupid attacks. In terms of Cisneros I knew someone would come to his defense and they did - this allowed for an extention of the discussion -

you offer nothing other than your personal dislike of me.

Bobby WC

Anonymous said...

Bobby, again with the insults? Can't you have a discussion without your having to disparage a person trying to have an adult conversation with you?

You did not acknowledge, specifically, my Gideon argument. Any student of adversarial banter would deduce you were wrong or approved my point.

But if that's all you have, with my other questioning unanswered, let me rebut. Computers existed in 1963. Before you change your mind, typewriters existed too.

Do you really need flamboyant expressions like "not even on the same planet"? The Court isn't the same now because of ideological differences and modernization of the workplace. The Warren Court is certainly different than the Taft Court. What's your beef?

There are 60 opinions because they combine cases and look for ripe cases. The Court is an appeals court above many appeals' courts. They don't grant cert in every case because the petitioner had two bites at the apple and sometimes more. Any student of the Court understands this.

They aren't turning people away simply because of the spacing standards you suppose. I have yet to see any evidence other than your commitment to your assertion. I am taking it at face value which at this point I don't see why.

How is justice achieved in an 8-1 decision? That one dissent could end up (and it has) being used years later to overturn precedence? What of those people that when to jail before the new change? Justice was perceived up until that point. By your standard there would be no need to have reheard the case because it was not a close split. It's our system. Are you advocating a revolution, Bobby?

Why can't Breyer convince three other justices to hear every case? Maybe he agrees it's unreasonable to hear all 8,000 cases, you suggest, when cases followed procedure or were judged properly. When two or more circuit courts disagree, they then step in and decide. That is why circuit courts were created.

Is it right? I am not one to judge. You can do all the judging for the both of us.

Because as we all know in 1963 Gideon was submitted on a computer generated brief and not some portable typewriter - when you learn to get your facts correct and stop arguing for the sake of arguing you might be able to contribute to the discussion.

This is the kind of stuff that gets you in trouble. It was handwritten. No typewriter used.

There's no need to discuss Sotomayor's judicial activism while try to get thru the fog of your comments. I challenge your assertions; I'm not attacking you. Do you plead mercy? There is something to be said about discussing cases everyone knows especially when I just pointed out to you that you didn't know enough about Gideon.

I don't profess to know everything, but I think that is your opinion of yourself. Talking about those cases everyone supposedly knows about keeps everyone involved. Are you trying to exclude people from discussing law?

You're right, a circuit court could ignore it but not because of your supposition. The lower court may not have read or digested the decision in 24 hours. Allow me to illustrate my point with two decision from this year, Gant and Montejo.

In Gant Alito dissented but concurred in Montejo. In dissent Alito claimed stare decisis. He pointed the finger at some Gant dissenters unwilling to overrule Michigan v. Jackson that occurred in Montejo because of stare. He alleged Gant overruled Belton. Stevens wrote the Gant opinion. In his Montejo dissent, he said Gant did not overrule Jackson.

If they have different interpretations, why would you expect a circuit court not to disagree without malice the day after? It happens.

As to your clients, where do you now practice?

BobbyWC said...

Anony, since you have made clear under no circumstance will you address my issue, why I oppose Sotomayor and just keep on throwing stupid distractions - here is the tape - now defend her comments or explain why a judge stating they make policy is acceptable

http://www.youtube.com/watch?v=ug-qUvI6WFo

According you you, my complaints about her which played on every news station is just me making up lies - I do not mind the comments except for the fact you are so delutional you actually believe everyone reading this will all of a sudden forget what they heard on the news.

And you are wrong about Gideon - the letter was hand written - here again you demonstrate a lack of knowledge of the court.

The letter was seen as a Petition for Writ of Certiorari - Once the Writ is granted the case is ordered briefed - the lawyers appointed to represent Gideon submitted his final arguments on type written briefs.

I never said there were no computers in 1963 - I said for their purposes - you just go off on your anger and make stupid comments.

I will assume you are too angry to read simple English - no right minded person assumed I meant that the only time an appellate court ignores the Supreme is only within 24 afters the Supreme Court rules -it could be months later - even after the appellate courts are told of the opinion.

Former Associate Justice White use to issue dissenting opinions in hundreds of cases every year over the court not taking cases. His issue was once two appellate courts arrive at differing opinions the Supreme Court had a duty to hear the case - he could never get three other justices to agree to hear all of the cases.

Further, if you knew anything about the court you would know that only Justice Stevens reads all Petitions for Writ of Certiorari.

Petitions are assigned to law clerks based on a rotating basis. So if for example the day your brief is assigned for review, Justice Alito's law clerks are assigned for the write up - the write up is going to have Justice Thomas's bias.

They sit in a room and briefly go over the write-ups. That's it - on that system your rights are decided. Law clerks who are green behind the ears decide your rights.

Now how about addressing why I oppose Sotomayor. her statements about policy making. Her statements about a Latina compared to white male.

her opinion throwing out the firefighters exam. I have a grand newphew in SA who study his butt off for that exam while other guys just blew it off.

This exam is about detailed science concerning explosives and chemicals. It is about every type building material you can imagine. It is about knowing how to access the information related to the building materials used in construction for a particular building. It is about accessing information on tenants.

Throwing out this exam because some people did not pass is like throwing out a doctors exam because some did not pass.

The firefighters exam demonstrates knowledge which saves lifes and protects communities.

All of my readers know you will never address any of these things because they do not serve your distractions.

No more posts until you address my three reasons for opposing her.

Oh, btw here is a fourth - every Republican running for the Senate next year will be playing this tape for the people - the argument will be - so long as the Dems control the Senate policy making judges will be appointed.

Sotomayor's appointment will cost the Dems the Senate. If Justice Stevens does not retire next year, the Dems will have to appoint someone to the right of Stevens once they loose the 60 vote Majority in the Senate - exactly how is the Dems loosing the 60 vote majority in the Senate over Sotomayors appointment a good thing?

Bobby WC

Anonymous said...

The court waits for issues it wants to review to arise.

These may not be first impression cases, but SCOTUS clerks routine comb through all CoA cases and even some of the major District cases for issues that they want to raise.

Each individual justice has the issues they want to see and hear, and they all have equal voice. Seniority and Chief status carry more weight, but they make arguments amongst themseleves to decide which cases to hear.

BobbyWC said...

Anony, you are correct - but the problem remains the clerks provide teh sumamries with their own bias - Posner hit this issue right on the head.

yes, normally I would agree a Sotomayor would be a great addition to the court because the reality is, all justices bring their own background to the court - this is never a bad thing by itself-

in Sotomayor's case she is also bringing a reputation of arrogance - this is not good

my big issue with the court deals with something you said which is 100% true -

they look for what they want - they should be looking for constitutional violations - as you know denial of certiorari does not mean they agree with the lower court - all it means is they do not want to hear the case.

What people do not realize is, all 9 justices may believe the lower court got it wrong, but they are under no obligation to take the case - so long as this remains the rule - justice will not be the agenda of the court.

Bobby WC

BobbyWC said...

Anony, you are correct - but the problem remains the clerks provide teh sumamries with their own bias - Posner hit this issue right on the head.

yes, normally I would agree a Sotomayor would be a great addition to the court because the reality is, all justices bring their own background to the court - this is never a bad thing by itself-

in Sotomayor's case she is also bringing a reputation of arrogance - this is not good

my big issue with the court deals with something you said which is 100% true -

they look for what they want - they should be looking for constitutional violations - as you know denial of certiorari does not mean they agree with the lower court - all it means is they do not want to hear the case.

What people do not realize is, all 9 justices may believe the lower court got it wrong, but they are under no obligation to take the case - so long as this remains the rule - justice will not be the agenda of the court.

Bobby WC

Anonymous said...

The man who geneally wrote the Constitution states "Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government."

That clears up what Madison believes about interpretation.

He also warned, "I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations."

Anonymous said...

Bobby, not playing in your court is not distractions. It's called a general discussion. Why do you need to limit conversation? What's with this No Mas attitude? Here we are having a conversation while you have disdain contempt for me.

Justice White did put a number of dissents calling for more cert. But you omit so much. He agreed that a maximum number of cases heard in a term would be 150 recognizing that there were only so many cases justices could responsibly hear in their quest for justice.

Don't you respect that Congress constitutionally legislated that the Supreme Court should not be in the full business of correcting lower court errors? Justice Brennan concurred with White's assessment of stepping in only where issues of federal law important to the whole country were involved. Justice Stevens, who earlier you claimed gets minority rights right more often, agreed that one district court and an appellate court is enough for justice.

I know a little more about SCOTUS than you think, but I won't be dragged into playing the arrogant anon. No, you can play arrogant blogger all you want. I want spirited debate.

You call Sotomayor arrogant? Allow me to laugh a bit. I hear a pot calling for some reason. Give me a second, I'm almost. There, I think I'm done laughing.

By the way, Alito, in your example, doesn't get cases handled by Justice Thomas' clerks. Justices are in charge of their own circuits. That doesn't change day to day.

You made it absolutely clear Bobby, that you won't address MY issues, spacing isn't a problem as you claim and that your view of equal protection is weak at best. And since you want me to play on your court, I will repeat what I said at May 29, 2009 6:34 PM.

I am sincerely disturbed by the Herald's editorial in support of Sotomayor...The paper is owned by Libertarians who disdain judicial activism yet because of the color of her skin and the genitalia between her legs they endorse her.If you read my English you would know my stance on Sotomayor's activism. I'm against judicial activism. However, she'll get appointed anyway.

Think beyond your blinders, man. You screaming bias, the law clerks have bias, is laughable.

Why do you do this "According you you, my complaints about her which played on every news station is just me making up lies"? It makes you look foolish. Is that your goal? I never said your complaints weren't valid. In fact, I said: "There's no need to discuss Sotomayor's judicial activism while [I] try to get thru the fog of your comments.

Maybe you didn't get that. Let me explain. Getting through your fog is hard enough except you want to talk about something huge like her judicial activism, which I already said exists. Obama wouldn't have considered her if she wasn't an activist. It's almost a prerequisite. What do you want me to do here disagree for the sake of disagreeing? What's the fun in that?

Now back to Gideon, your concern was over justice being denied because of spacing issues. When exactly did spacing become such an issue on the Court? I don't even think it exists beyond your gigantic brain. But I digress. A simple convict sent a simple petition to the Court, and they agreed to hear the case. But here you are saying today that justice is denied because they didn't use the right font size. I can't get passed that because everyone sees that is not true. Why won't you agree that people who petition the court have already had their cases heard at least twice? How many times must some of these petitioners be told they are wrong? Did you petition past the 13th court of appeals recently? Why didn't? Is it because you already had your biteS at the apple?

You did say no computers in 1963. "Gideon was 1963 - no computers just typewriters."

As to your "no obligation" retort, they are under no obligation because Congress says so. It would be judicial activism if they did take each and every case. Isn't that why you don't like Sotomayor?

BobbyWC said...

Again you remain wrong about the Court - general petitions for Writ of Ceriorari are NOT asigned based on the originating circuit - they are reviewed on a rotating basis from clerk to clerk -

You are confused and again demonstrate you are speaking from some textbook without actual knowledge - the only time a Petition goes directly to the clerks of the Justice assigned to a particular circuit is when the Petitioner files an Application for Stay or one of the other limited times when you petition direcly to the circuit justice, which in our case is Scalia.

Now this was a typo both should have said Alito "Justice Alito's law clerks are assigned for the write up - the write up is going to have Justice Thomas's bias."

You know you can harp on Gideon and this font issue until hell freezes over, but you are simply wrong - my point was Gideon did not have to face the current court rules which make it a nightmare to get heard - because of the demands of computer generated briefs, which did not exist at the time of Gideon - claiming they did because the military had computers which took up entire buildings makes you look desperate.

You can type a billion times there is no font problem but it does not change Supreme Court Rule 33 -

"(b) The text of every booklet-format document, including
any appendix thereto, shall be typeset in a Century family
(e. g., Century Expanded, New Century Schoolbook, or Century
Schoolbook) 12-point type with 2-point or more leading
between lines. Quotations in excess of 50 words shall be
indented. The typeface of footnotes shall be 10-point type
with 2-point or more leading between lines. The text of the
document must appear on both sides of the page.
(c) Every booklet-format document shall be produced on
paper that is opaque, unglazed, and not less than 60 pounds
in weight, and shall have margins of at least three-fourths of
an inch on all sides. The text field, including footnotes, may
not exceed 41/8 by 71/8 inches."

The middle class in this country cannot be heard before the Supreme Court. They cannot afford the $20,000.00 needed to produce the petitions with guarantees of no rejection based on font problems.

The problem per se is not with the font - it is with the special booklet which must be produced by a company with access to the special paper and booklet form.

Again Rule 33 "every document filed
with the Court shall be prepared in a 61/8- by 91/4-inch booklet
format.

Again all you want to do is attack without addressing the issues -

yes I admit it I causes mass hysteria in Washington and got teh commentators to call Sotomayor arrogant - I did it all by myself - I tricked everyone of them.

Now as I pointed out, which you did not know, every word processing program can handle the font problem. If the court would to use the same font rules, but allow all Petitions for Writ to be filed on regular 8 1/2 x 11 paper with some type binding then the problem would go away, as to the middle class.

I know you have never read the rules because had you read the rules you would have pointed out that indigent petitioners are allowed to use the 8 1/2 X 11 paper - but instead you harp on the fact the military had computers in 1963.

As to your comment on the 13th court of appeals - you are simply wrong - something you appear quite competent at.

Bobby WC