The Radical Status Quo Menace
Posted on May 27th, 2009
by Daniel Larison |
|
Apparently, there is nothing so worrisome as a judge biased in favor of the status quo. Fortunately, we have Jonah Goldberg to tell us why:
The “empathy” thing strikes me as a warrant for bias (which is an ancient problem) not judicial activism (a more recent, or at least more specific, phenomenon). And, as it applies to identity politics, it is a form of racism and/or sexism. For instance, Obama wants judges to side with members of the Coalition of the Oppressed in the really tough cases. That needn’t be a call for judicial activism. Rather, it’s a call for bias — in favor of the status quo.
Indeed, if you look at the Ricci case, Satomayor’s actions seem exactly like a reactionary defense of the status quo. The existing legal regime is to her liking because it sustains a racial spoils system that discriminates in favor of preferred minorities. The Ricci case threatens the existing system. Sotomayor’s shameful attempt to bury it aside, was her substantive ruling against Ricci judicial activism — making policy from the bench — or was it the equivalent of judicial wagon-circling? It seems to me it was closer to the latter.
By “judicial wagon-circling,” Goldberg seems to be referring to not making up the law as they go and not overthrowing precedent. After all, isn’t a judge normally supposed to be biased towards the status quo, the (more or less) settled state of law, rather than looking to engage in social experiments from the bench? Wasn’t that one of Romney’s constant refrains that won him so much approval in mainstream conservative circles? Isn’t that one of the key planks in almost every argument against the actions of various state judiciaries concerning gay marriage? Isn’t a bias in favor of the status quo usually an important part of judicial restraint? Was the California Supreme Court recently engaged in “judicial wagon-circling” to defend the status quo on Proposition 8, or were they respecting the constitutionality of a constitutional amendment passed by popular referendum? Ah, yes, the catchy slogans don’t seem so clever anymore, do they? If Sotomayor is biased in favor of the status quo, how exactly does the empathy for the “Coalition of the Oppressed” work? After all, to be biased in favor of said “Coalition” would entail altering the status quo to their benefit (hence the fear of radicalism, the influence of identity politics and concerns about empathy), but to be biased in favor of the status quo would then be to stand in the way of benefiting the “Coalition.”
The essence of Goldberg’s complaint–complete with the pejorative use of reactionary–is that Sotomayor is a sort of liberal dinosaur defending the established order against new challenges and threats. The problem with her, if we took this seriously, is that she is not sufficiently radical enough, in that she respects the structure of precedents and statutes that has been built up over the last several decades and does not propose, as her critics would like to have her do, to embrace a simple approach to equal protection. One might ask the following at this point: if Ricci himself was not challenging the constitutionality of the relevant provision in federal law, why would anyone have expected Sotomayor to volunteer to say that it was unconstitutional?
There is something eerily similar to conservative reactions to the Ricci case and the common conservative reaction to the rulings of the courts in the Schiavo controversy: the actual substance of law in the matter was fairly straightforward and clear, but it yielded a result that many conservatives found unacceptable, and they therefore sought all manner of political remedies to undo the reasonable decisions of the courts. Rather than locating the problem in the law or in the unusually difficult circumstances of the case in question, conservatives determined that it was the judges who were the problem. There is also a similarity in the schizophrenic reactions to Sotomayor (defender of the bankrupt system! no, crazy radical! maybe both!) to the way conservatives vacillate between accusing Obama of being a hypocrite and liar (”he promised change, but he’s just continuing Bush’s policies”) and freaking out about the approaching dictatorship of the proletariat that he will supposedly usher in. For my part, I have not had any illusions that Obama was anything other than a conventional establishmentarian, and this was obvious all along, and in choosing Sotomayor he has shown yet again how he can make a rather boring status quo decision seem much more momentous and remarkable than it is.
Filed under: politics
48 Responses to “The Radical Status Quo Menace”
Leave a Reply
You must be logged in to post a comment.
[...] up with this observation in a post ridiculing the esteemed author of Liberal [...]
Goldberg gets himself in trouble trying to be cleverer than he is, but the point I took from his quote was valid. The current legal system operates as a spoils system and in that, she has and establishment mentality. First the Bolsheviks are against the law. Then the Bolsheviks are the law.
Her U-Tube quote about appeals courts setting policy had unremarked upon insights. She is encouraging law students to work at “Defense Fund,” organizations right out of law school; a standard left sentiment, and she took for granted that the appellate court set policy. This last statement exemplifies how all too many minorities and people of the left see our institutions, as mere environments in which to maneuver. They see government as an instrumentality rather than as a necessary, impartial branch of government representing common interest.
The status quo is toxic in the long run, radical or not.
At the risk of trying to be clever than I am, I can’t help but notice this statement is the antithesis of conservatism.
The institutions belong to the left and the right, and I think Daniel gave a pretty good example of cynical maneuvering with his citing of the Schiavo mess… Institutions are not damsels in distress, and both sides are quite happy to use them instrumentally.
she took for granted that the appellate court set policy.
If I may ask, what the hell do you think precedent means? Appeals courts have the task of establishing how the law is interpreted and applied in their circuit; they have no authority to question or examine the facts of cases before them. If that’s not “establishing policy,” what is it? Of all the complaints evidencing ignorance of how the judicial system works in this country, this has to be prime. When the circuits disagree, the Supremes establish the policy; oh, sorry, not that naughty word–precedent. Talk about a distinction without a difference.
Daniel made a good point about the manner in which conservatives complain about legal decisions. My point is that the current system is a toxic one in that it no longer functions according to its own constitutional principles. It functions as a spoils system. That is the status quo to which I refer.
If to be a conservative is to brainlessly work to defend unconstitutional enactments of a movement dedicated to debasing everything we stand for, then count me out.
Les. Policy is set by the Executive and Legislative branches. The only policy set by the Judiciary is internal policy (eg. Judges shall wear black rather than paisley robes.) Appeals courts are in the business of examining process questions. As you point out, they do not retry cases. They are generally at the mercy of previous judicial precedent in how the law is to be interpreted. But they still are supposed to rely on legislative or executive language in determining what public policy is. So for them to set policy is to usurp the roll of the other branches. And this is precisely what many conservatives suspect she is all too willing to do.
Daniel, you are obsessed with Jonah Goldberg.
You really need to get over it.
Oh, and semi-literate stuff like this:
“…The problem with her, if we took [sic] this seriously, is that she is not sufficiently radical enough [SIC], in that she respects the structure of precedents and statutes that has been built up over the last several decades and does not propose, as her critics would like to have her do [SIC!!!], to embrace a simple approach to equal protection…”
…is not getting you any closer to a berth at any reasonably respectable media outlet.
Think harder. Write slower.
Daniel, this is my first post on your blog, and I very much consider myself liberal (a little too libertarian for many friends, esp. regarding 2nd amendment issues), but I also very much enjoy your writing and perspective. I don’t mean to impose, and I’m sorry to be somewhat off topic, but I must say your thinking and principles (with the exception of religious issues), much more closely parallel current “liberal” thought than “conservative”. It may be time you looked beyond the titles and traditions, and became a religiously conservative democrat. As you are an excellent writer and thinker, I hesitate to give you advice, but perhaps at some point, the total abandonment of principle of the Republican party may drive you away, as it has many others. I also hesitate to welcome the religious into the “Big Tent”, but your thoughts on foreign policy, politics, and basic human decency are welcome to me anytime.
Steve, I don’t know why you are incapable of making a relevant comment. I can’t remember the last time you said anything here that was the least bit connected to the subject of the post. The sentence you quote is a bit clunky, and I should have broken it up into a couple sentences, but there’s nothing semi-literate about it. I’ll grant that it is not elegant. The nonsense about respectable media outlets doesn’t deserve a response. The work speaks for itself, flaws included. This is a blog, and sometimes the writing isn’t as good as it could or should be on account of haste or carelessness.
I haven’t written on anything Goldberg has said in weeks, and as I recall the last time I commented on his work it was to offer a partial defense of one of his columns. For the most part, I have no idea what he has written in the last year, and I don’t care. Occasionally, I come across one of his items via RCP and sometimes I remark on what he has written. This happens maybe once a month. If this is an obsession in your eyes, so be it.
Yeah I know! If you’d said “this status quo” it would have made more sense, but you didn’t and you stuck on “radical or not,” which is pretty expansive, unless you’re trying to code some meaning into “radical” which isn’t really there.
This aside, I think the claim that the judiciary of the United States is a “spoils system” is pretty broad and to my mind implies some kind of remuneration or corruption in the sense of someone getting a sinecure in exchange for their allegiance. I don’t think a judgeship is a sinecure by any stretch of the imagination, nor is working for something like the Innocence Project… but I digress.
Coming from the direction you’re saying, I think you’re saying that the Blue Team and the Red Team nominate Blue and Red judges with the expectation that they’ll generally decide in favor of their respective Blue or Red Team’s interest groups. In this immediate case it seems like it’s a pretty thin argument, since Sotomayor generally upheld a federal law and didn’t go re-interpreting the Constitution to suit a particular stylish “strict-constructionist” argument (one that was not offered by New Haven or Ricci, it might be added).
More generally, for a judge to advocate working for a defense fund is no different to my mind as a judge suggesting a young lawyer join the Federalist Society. Judges are self-interested political actors like anyone else, with their own backgrounds, personal opinions, and ambitions, and this appears to be clearly recognized by the Framers, considering the institutional bounds placed on the Court. If you wanted to assert that this “spoils system” as you call it is a significant change in affairs from say, the 1870s, you have a bigger hill to climb than just baldly asserting the libruls are destroying America, unless you are satisfied that calling for young people to work as a pro bono denfense attorney is res ipso loquitor malignant. (ps. It ain’t) Finally, “just” does mean “impartial,” but it doesn’t mean “representing the common interest.” That isn’t the court’s job.
I think this is overly idealistic, since as Les pointed out, in a legal system like ours with judicial review and a strong tendency to uphold precendents, the legislatures are simply obliged to calibrate their laws in such a way thay they will not be overturned as unconstitutional. If you don’t like it, sue the court to delcare Marbury unconstitutional (you’ll get at least Scalia’s vote).
Do you really think that the government is in the hands of a vanguard “dedicated to debasing everything we stand for?” Really? Welcome to my world in 2003…
Les. Policy is set by the Executive and Legislative branches. The only policy set by the Judiciary is internal policy (eg. Judges shall wear black rather than paisley robes.) Appeals courts are in the business of examining process questions. As you point out, they do not retry cases. They are generally at the mercy of previous judicial precedent in how the law is to be interpreted. But they still are supposed to rely on legislative or executive language in determining what public policy is. So for them to set policy is to usurp the roll of the other branches. And this is precisely what many conservatives suspect she is all too willing to do.
I have to assume that you’ve not read statutes, seen the legislative process nor researched legislative history; not read legislative or administrative regulation, nor participated in the process that generates therm; not seen a court or appeals pleading, nor read a lower or appeals court judgment; in short, don’t know of which you speak. I suppose you could be working with some idiosyncratic definition of “policy” that excludes courts and judges, by definition; I don’t think most of us are.
Legislative and executive policies, embodied in statutes, rulings and regulations, are sadly not all glistening models of golden clarity, whose meaning is obvious to all but the obtuse and evil. People do, in fact, disagree strenuously about what these policies mean, and how they apply to their situations. Why, they sometimes sue each other over such disagreements!
Trial courts determine, as best they can, the facts on the ground; and make judgments that say, here’s what the law/policy means. Pure interpretation, you may say; not “policy.” Damn little effective difference, to the winners and losers.
And yet, people (often bright, experienced, capable people of good will) still often disagree; and they submit their disagreement to the appeals court. In our sole point of agreement, the appeals court take the facts as given by the lower court. Their task: determine what the law means in the circumstance; determine what the policy is. Once determined, that policy determination must be applied by all of the lower courts in the circuit.
Your quibble that an appeals court justice is wrong to say that this process consists of setting or creating policy is pretty much ignorant or stupid, leaving open the possibility of useless pedantry. Your comparison to choosing the color of their robes has fewer alternatives.
Well Les, you know what they say about assuming things. I comment here as Gordianus due to world press sign in procedures. My name is Thomas O. Meehan. I retired from Government after 26 years of service. Some of it in law enforcement, much in legal, legislative and regulatory research. I was the legislative liaison in almost every office I worked. I held a full time position at the Rutgers University Law Library. Regulatory material authored by me has been cited in journals and included in bills that became Federal Law. In short, I have worked for a generation in the enforcement off, writing of, and adjudication of law. I think it would come as a shock to the many lawyers, judges and legislators with whom I’ve worked and socialized over the years that I had so little understanding of how the system works.
What I wrote was a perfectly accurate description of the way our system is supposed to work. Your confusion over the difference between policy and precedent is a bizarre. You repeat in a condescending way the truism that since legislative and regulatory intent is sometimes vague, courts are to interpret them as best they can. We seem to disagree over the judiciary practice of using real or imagined ambiguities in such language to create social policy of their own. Their rulings set precedent that create their own policies. You take me to task as though I didn’t know they do this all the time. My point as a conservative is that this is Judicial usurpation however often it happens and should not be tolerated much less encouraged.
If you don’t understand this much, you may consider going back to your old law school and asking for a refund.
Gordianus, I hope you will forgive me if I do not immediately recognize you. You do a nice job of moving the goalposts; you did not start with a statement out of your deep and edifying experience that you believe judges, in some circumstances, change the intended policy of a law due to real or imagined ambiguities. I am perhaps at fault for not recognizing your statement to be about the Platonic ideal of what the system is “supposed” to be–not, having some study of common law behind me, that I would necessarily agree with you. Your sojourn in messy reality must have been disappointing to you. You said, she took for granted that the appellate court set policy, and that the statement was either inaccurate or improper. You’re welcome to believe that “activist” judges impermissibly misinterpret pearls of legislative/administrative wisdom, or to claim that the courts get it wrong, or whatever. Doesn’t change that what Sotomayor said is neither inaccurate or improper; it’s the function of the court, and most particularly of an appeals court laying down the law for a circuit.
I too have been involved with the process, have drafted statutes that are now law, worked on regulations, etc. Alas, not at the lofty heights you have so notably scaled; you must certainly be acknowledged my superior. In the hands of those less exalted, the legislative sausage making process is far from pristine; outside the library, people dispute the content, purpose, intent and application of law every day. To deny that courts are involved in setting policy is to quibble over meaningless semantic distinctions. If what comes out of the judicial process is not the intended result, it’s up to legislators to try again.
Jamie. You make a number of observations and I’ll try to respond.
I do think that Supreme Court appointments represent Red vs Blue team competition. But you are right that for the most part Justices rule according to precedent. But It has always been around the margins and in exceptional cases that the “progressive” agenda advances. BTW I don’t actually cite any decisions of Judge Sotomayor because I haven’t read any and would not presume to speak without information. I do comment on her public statements because they are verifiable.
You wrote, “This aside, I think the claim that the judiciary of the United States is a “spoils system†is pretty broad and to my mind implies some kind of remuneration or corruption in the sense of someone getting a sinecure in exchange for their allegiance. I don’t think a judgeship is a sinecure by any stretch of the imagination,” OK, my primary concern is that leftist judges are committed to a racial spoils system in American life in general. But the Judiciary itself has long been such a system. Have you never heard of anyone being “rewarded with a judgeship?” Judge Sotomayor is being considered in large measure due to the advocacy of Latino politicians who make no secret of this fact. If a Supreme Court appointment isn’t a sinecure I don’t know what is. They serve for life and are almost never impeached. In my lifetime there have been at least two who were noticeably senile.
You also wrote, “More generally, for a judge to advocate working for a defense fund is no different to my mind as a judge suggesting a young lawyer join the Federalist Society. Judges are self-interested political actors like anyone else, with their own backgrounds, personal opinions, and ambitions, and this appears to be clearly recognized by the Framers.” Considering the speaker and who she was speaking to, I’m forced to note that “Defense Fund” advocacy is a tool of the left in our society, advancing the privilege of certain groups over the rest of us. It’s not illegal, but the closeness of a nominee to such groups is a warning to the rest of us. I also think that the point of the Federalist Society is to restore the constitution while the point of the Defense Fund outfits is to corrupt the constitution to their own ends and against our interest.
In stating that a Judge is a self interested individual like the rest of us, you accede to a prime tenant of the left. That is, self interest is the only interest. By assuming that narrow self interest is the only motivation, you make the possibility of disinterested public service an impossibility. This point is key to the present situation. Sotomayor and her supporters are not shy about claiming that identity politics are the only variety, and that society is really just a collection of “Communities” who must be numerically represented in order to have justice. Nothing is more alien to the spirit of our republic. Someone of this mentality, who may be a member of La Raza cannot represent impartially the interests of all Americans.
And, you wrote, “The legislatures are simply obliged to calibrate their laws in such a way thay (sic) they will not be overturned as unconstitutional.” Of course this is true but it has nothing to do with policy unless that policy goes so far as to violate constitutional rights. Up to that point the court has no role, which is why it is important for conservatives to keep people off the bench who wish to make up policy of their own.
Finally you wrote, “Do you really think that the government is in the hands of a vanguard “dedicated to debasing everything we stand for?†Really? Welcome to my world in 2003…” Well said. Yes I can appreciate how the Bush Administration could drive one to distraction. I’m guessing that I am to right of you and I have been sickened by the imposture of the opportunists, hucksters and worse who have made conservatism a laughing stock among reasoning people. I’m from New Jersey and if my language in describing the liberal elite seems excessive, bear in mind that I have worked in governments that already operate the way the current administration is headed.
Gordianus, maybe there’s a better way around this. You, it seems to me, are joining those who think that Ms. Sotomayor’s statement is improper, and indicates a misunderstanding of her role that renders her unfit for the bench; or, at least, for the Supremes. You should be better positioned than most making this claim, to support it. Can you cite any decisions of hers that constitute usurping the legislative/executive prerogative of setting policy? Surely, if her statement is the announcement of a failed understanding or improper intent in her role, she must have acted on it?
Gordianus, on May 27th, 2009 at 11:34 am Said
“This last statement exemplifies how all too many minorities and people of the left see our institutions, as mere environments in which to maneuver. They see government as an instrumentality rather than as a necessary, impartial branch of government representing common interest.”
………Behavior completely unknown of course among the business community or right wing interest groups ……….Everyone from J. D. Rockefeller to Tom DeLay has only every operated in the common interest, naturally. I’m not a lawyer Mr Meehan, just a retired businessman although I’ve runs some fairly large undertakings, but given your solid gold legal background I’m bound to say I find the above statement surprising to put it politely. The notion that maneuvering for advantage within the legal system or government is the exclusive preserve of minorities or the left is truly one of the most absurd claims I’ve ever heard. It’s probably true taking the long view that the oppressed or disadvantaged have used the court system to lever open doors on the road to justice but that’s only because the laws were by and large written by those doing the oppressing. Desegregation being an obvious case in point. The trouble with the right is that their dudgeon is highly transferrable and infinitely flexible. In the Ricci case the panel of three judges, and there were three, were unanimous in applying the law just as there was a high degree of unanimity on that other CT case on eminent domain. As Daniel points out the right tends to like activism and emotionalism when it produces results they like, and then rails against it when the outcomes are less to their liking.
Les, we can agree that legislators, or frankly, their aides, write ambiguous language into law. As I write it occurs to me that in the state I worked, all or most bills were actually written by or with the assistance of the Office of Legislative Services. So most bill language was actually written by disinterested staff lawyers. Yet “Ambiguities” are found in this language as well.
I do write from the premise that a Supreme Court nominees should adhere to the ideal rather than just represent the messy norm. If Judge Sotomayor acknowledge on tape, that the appellate branch is not supposed to set policy, why be more Catholic then the Pope?
I take your last point, but we operate in environment where the some courts have made plain that they will frustrate the will of the legislature no matter what they write. I think getting back to a regime where policy is the prerogative of the the legislature is a necessary conservative goal.
I’m hardly a legal genius but my little bio was included just as a corrective to your condescending attack. Not everyone here is a teenage writing from their mother’s basement.
Les, I’m not coping out here, but what I wrote was a reaction to Dan’s post regarding statements. I’m reacting to what she has said. As I told Jamie, I haven’t begun to read her decisions. My understanding is that we are all attempting to analyze what she is likely to do based on her own statements.
It’s is possible that she talks one way but rules another. If so, she should be confirmed. Many think she is likely to be another Souter. If so, from a political point of view, nothing much changes. What I find troublesome in her statements is the use of language that is consistent with identity politics, which I consider poisonous.
I recognize this as an invitation to my own hanging, but I’ll look to see what I can glean from her record. Of course we will all be deluged with what other people see as significant rulings before the end of the day, if not already. I assume that there will be a lot of spin and disinformation involved from all sides.
Gordianus, on May 28th, 2009 at 10:50 am Said:
“Well Les, you know what they say about assuming things. I comment here as Gordianus due to world press sign in procedures. My name is Thomas O. Meehan. I retired from Government after 26 years of service. Some of it in law enforcement, much in legal, legislative and regulatory research. I was the legislative liaison in almost every office I worked. I held a full time position at the Rutgers University Law Library. Regulatory material authored by me has been cited in journals and included in bills that became Federal Law. In short, I have worked for a generation in the enforcement off, writing of, and adjudication of law. I think it would come as a shock to the many lawyers, judges and legislators with whom I’ve worked and socialized over the years that I had so little understanding of how the system works. ”
Frankly, this lowers my opinion of you, since it’s now clear that you’ve not been speaking from ignorance here.
Heck, let’s just take the fourth amendment (’The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’). This opens a can of worms the minute actual cases start hitting the courts.
Ottovbvs. Your point is well taken. We are all greedy sordid bastards seeking to use the law and the government as a cudgel in our own interest. Given. But that is precisely why we need some cadre of persons to man disinterested institutions.
Judge Sotomayor was tapped stating that though it is not supposed to, the appellate court set policy. These were her words not mine. What upsets me is that it was done laughingly among students.
It should come as no surprise that leftists view our institutions as mere means to an end. Why wouldn’t they? As Marxists, they don’t recognize the legitimacy of anything but economics and group interest. Most minorities gain entry to the elite via Marxist influenced institutions. These institutions inculcate deep suspicion and alienation regarding the rest of society.
Question: Were Gordianus or others exceedingly troubled by Alito’s statement in confirmation hearings that his judgment is informed by his parents’ immigrant experience? Or is the problem not the “identity politics,” but the identity?
Les,
“Question: Were Gordianus or others exceedingly troubled by Alito’s statement in confirmation hearings that his judgment is informed by his parents’ immigrant experience? Or is the problem not the “identity politics,†but the identity?”
I can’t speak for others but I have always found these cloying personal stories childish. It’s all part of the dumbing down of American life. Political hacks push this stuff to make appointees more likable and more sympathetic so it’s harder to attack them.
The same goes for spouses of public figures.
Sorry, I know I should quit, but I just don’t get this: It should come as no surprise that leftists view our institutions as mere means to an end. Is there a political bloc in the U.S. that sees government institutions as an end, or worse, a self-existing verity, in themselves? That admiration for the beauty of a well-tuned bureaucracy is excuse enough for its creation? Or do not all blocs work politically to create institutions of government that will achieve their ends? I get, in the arena of religion, that people believe there is an outside agency, a Truth, with its own agenda; to believe such a thing of government is incomprehensible to me. And dangerous, because it lets the believer view opponents as evil forces to be put down, not as participant in a mutual process.
By the way, time stamps on the comments are seriously f’ed up.
Les, I don’t see our institutions as ends in themselves. I see them as creations of the constitution that are held to a higher of responsibility than the local ward healers club.
Les, I don’t see our institutions as ends in themselves. I see them as creations of the constitution that are held to a higher of responsibility than the local ward healers club.
Well, yeah, but a higher level of responsibility to do what? I submit, you believe the responsibility is to accomplish the tasks of government as you see/define them. That, after all, is why we have government. The constitution is a wonderful document, but it didn’t come down the mountain on tablets of stone.
Les,
If you take the time to really watch the video of Judge Sotomeyor making her comment about the Court of Appeals, I think you would (as would any fair observer) notice a few things that really stand out.
In the first place, she immediately realized she had over-stated the role of the courts, but only insofar as it revealed her inner feelings.
At first, she said:
“Court of Appeals is where policy is made.â€
And then you will notice that she quickly realized she had blurted, and she immediately clarified her comment, saying:
“And I know, and I know this is on tape — I should never say that ’cause ‘we don’t make law’ . . . I know. Ummmm . . . uhhhh . . . Okay. I know. I know. I’m not promoting it, I’m not advocating it, I’m . . . you know . . .“
Yeah, Sonia, we know!
As you watch the tape you see her gesticulating at the moment she said “’cause we don’t make law†which I took — and I think fairly — to mean she was putting quotation marks around what she clearly considers a political shibboleth.
In other words, she was first stating what she really believes — that the role of the Court of Appeals is indeed to set our national policies.
But in her inartful “pull back” she certainly seems to be doing little more than paying a wise-cracking lip-service to a more restrained view, one which honors some reasoned set of guidelines for judicial restraint, a la, for example, the “rules” articulated by Justice Brandeis in his concurrence in Ashwander v. TVA (a liberal, by the way).
But the words Sotomeyor used, the look on her face and the derisive laughter from some of the assembled make it very clear that neither she nor they believed her clarification for a New York second. She is a judicial activist.
Now, you may believe that sort of unrestrained judicial activism — the law is what the judges say it is, and they set policy — is a quality devoutly to be wished. I do not.
Justice Ginsberg, for example, feels that citation to foreign law — in constitutional cases — is permissible exercise based on the general guiding principle that we are bound Constitutionally to strive for “a more perfect union,” and that language permits rummaging through foreign judicial precedents to enlighten our modern judges to assist them in defining or discerning for us — by way of judicial fiat — what that more perfect union is going to be, notwithstanding what the original intent on any provision may have been.
It seems to me, however, that that view ignores the intention of the framers, i.e., that the Constitution can and should be amended from time to time, in order to facilitate the adoption of evolving notions of what ought to be “a more perfect union.”
The point is that the judiciary is by leaps and bounds the least democratic of the branches of our government. And constitutionally, it is the branch with the fewest checks on it’s exercise of power. Within the political branches, was where the constitution committed the power to set policy. Judicial restraint, therefore, for most of our history has been a respected doctrine. The resolution of real disputes — what our constitution calls cases in controversy between parties — is the business of the courts. Even the very jurisdiction of the courts — their power to act — was first established by the legislature. Setting national policy is not, or at least should not be the province of the least democratic of our institutions. And judges who think it should be, should not be on the Supreme Court of the United States.
Les, I expect the institutions set up by the constitution to perform the functions set out for them by the founders as they, not I, defined them. That is the purpose of a constitution as I understand it. Like most conservatives I believe that the intent of the founders is not obscure or unknowable in most cases. You can have reverence for institutions and traditions without confusing such reverence with religious faith.
Gordianus, if we start here…
I guess you’re right. I think anyone who claims to act as a disinterested public servant is lying to themsleves at least. I’m reminded of the old Beauvoir quote, “Objectivity is merely male subjectivity.” There are simply things a single public servant will not understand about all of his constituents, and is incapable of ever completely taking to heart, and so we have collegial institutions where many individuals have shared powers and must get many people’s assent, or at least cognizant silence, before acting. I don’t think this is the same thing as saying self-interest is the only interest, but it’s important to remember that altrusim is itself merely a survival skill employed by the individual in the hope that an act that benefits the collective will benefit the individual. (I guess this is a pretty jaded and trendy “behaviorialism”, but here I am.) It’s simply impossible for an individual to act fairly with respect to many people at all times, particularly a people as diverse as the current US polity, and I think arguing that it is possible is basically an argument for a perfectible dictatorship.
I personally don’t find anything particularly exceptional or final in the Framer’s particular institutions, and the instutions themselves are basically worthless if the people at large don’t feel represented by them. I’m no small-d democrat (let’s not get crazy), but I think the way people select their leaders is still basically the way it was for thousands of years, that elders of the landholding class have a tendency to be preferred, due to their natural stake as property owners and employers, but groups that are newcomers or find themsleves to be a minorty will want to make sure they hold a stake in the enterprise, on the principle that the will of all the people and not some superior experience are the foundation of government. I think this outcome is inescapable as long as you welcome newcomers. (And that’s a whole other argument). This is the cost of a government that wants to hold legitimacy without pointing guns at people.
To the specifc point at hand, I don’t think you’ve established that Sotomayor’s is partial. All there is, still after all this, is innuendo because she said she was proud of her heritage and that it gave her insight someone else might not have. Insight isn’t a scalar value, it’s not some quantity and the person with the most is the most qualified. She knows stuff a 4th generation German-Swedish-Norwegian-American, like yours truly, won’t ever know or completely understand. I’ll never know enough to completely, uh, “empathize” with that upbringing. That takes nothing away from me, because I think we’re all equals in this way.
Daniel,
You say in your post:
“The essence of Goldberg’s complaint–complete with the pejorative use of reactionary–is that Sotomayor is a sort of liberal dinosaur defending the established order against new challenges and threats. The problem with her, if we took this seriously, is that she is not sufficiently radical enough, in that she respects the structure of precedents and statutes that has been built up over the last several decades and does not propose, as her critics would like to have her do, to embrace a simple approach to equal protection. One might ask the following at this point: if Ricci himself was not challenging the constitutionality of the relevant provision in federal law, why would anyone have expected Sotomayor to volunteer to say that it was unconstitutional?”
First things first. I recommend you read the actual opinions in the Ricci case. If you had, you would not have said some of what you said. Or, at least you would not have said it with a straight face.
That is because you would know that the Ricci challenge was not an attack on the provisions of Title VII, but on the failure of the City of New Haven to honor the results of promotional tests, primarily based on a concern that minority candidates would have legally challenged the promotions if they had been certified.
And the City’s defense seems to be grounded in the notion that because they refused, across the board, to honor the results of what were (all agreed) facially neutral tests, on the grounds that the results would not have resulted in the promotion of minority candidates — that they cannot be found to have discriminated against plaintiff Ricci, or the other successful test takers, no matter how much time, effort and expense they put into preparing for that exam.
In other words, New Haven conducted racially neutral examinations for a few promotions — Captain and Lieutenant in the fire department. But the results were not to their liking because minority candidates did not fare well. So, they threw out the results for everyone. Even the Federal District Court (the trial court) stated that the decision to throw out the tests was racial in motivation but said that the result was neutral, because it applied across the board to everyone. and therefore was not a denial of equal protection.
Here is a paragraph from that Court’s decision:
“Thus, while the evidence shows that race was
taken into account in the decision not to certify the
test results, the result was race-neutral: all the test
results were discarded, no one was promoted, and
firefighters of every race will have to participate in
another selection process to be considered for promotion.”
Sotomeyor voted with the majority to affirm that trial court decision on the grounds that the trial court was right — the Circuit Court of Appeals initially wrote a one paragraph decision.
The knock against Sotomeyor, therefore, is that the appeals court decision looks very like “results-oriented” decision making. They dismissed the appeal by Ricci and others out of hand.
As was pointedly noted by the dissenting judge in the appeals court decision, in framing the issue:
“Insofar as the decision to not certify the results was based on
the race of the high-scoring applicants, however, it is arguable that the deck was stacked against applicants of that race: If too many white applicants obtained high scores, the City stood ready to nullify the results in the hope that non-white applicants would score relatively higher on a subsequent examination. Whether such action amounts to an impermissible racial quota was not addressed in the District Court’s opinion or in the decisions issued by the panel, which
do not even note that this action arises under the Equal Protection Clause of the Fourteenth Amendment.”
In other words, Judge Sotomeyor fully agreed with the notion that if a City conducts an examination for promotion that everyone agrees is a racially neutral test, but they end up with a result that does not work to the benefit members of racial minorities, why they can simply throw out the results for everyone and start over. And presumably they can keep doing that until, of course, they get the result they wanted right from the start.
And that does not violate your fundamental notion of the equal protection of the law?
Les, I expect the institutions set up by the constitution to perform the functions set out for them by the founders as they, not I, defined them. That is the purpose of a constitution as I understand it. Like most conservatives I believe that the intent of the founders is not obscure or unknowable in most cases. You can have reverence for institutions and traditions without confusing such reverence with religious faith.
Gordianus, that’s mostly a fair enough statement. However, 250+ years of experience tell us that, while the intent of the founders may not be obscure or unknowable in most cases, it’s pretty obviously subject to disagreement and divergent interpretation in many, many cases. Often enough, disagreements between and among conservatives. Else, your law library job would have been much simpler (and I know it was not). The concern I have is the potential effect of turning disagreement on interpretation and application from mutual efforts to realize the founders’ intent, to deliberate attacks on their obvious and immutable means.
And Les, May 28th, 2009 at 7:00 pm:
Here’s a challenge for you.
Try to come up with something, anything really, in the language or legislative history of either the 14th Amendment, or for that matter, of Title VII, which provides that it was the intention of the 14th Amendment founders, or the legislators of Title VII, to provide for a testing process for employment promotions for official positions, whereby governments may take such official actions — ones that everyone agrees are done in an entirely neutral manner with regard to race — but when the consequences of taking those actions do not produce the racial results that are to their liking, they may arbitrarily nullify those entire process, and begin again, until they get obtain the racially based results they obvilusly wanted to begin with.
If you cannot produce anything like that, perhaps you should consider withdrawing your question, above, to Gordiadus, no?
“Can you cite any decisions of hers that constitute usurping the legislative/executive prerogative of setting policy?”
Here’s a hint: Ricci v. DeStefano.
In other words, Judge Sotomeyor fully agreed with the notion that if a City conducts an examination for promotion that everyone agrees is a racially neutral test, but they end up with a result that does not work to the benefit members of racial minorities, why they can simply throw out the results for everyone and start over. And presumably they can keep doing that until, of course, they get the result they wanted right from the start.
And that does not violate your fundamental notion of the equal protection of the law?
What’s missing in this analysis is the fact, acknowledged by the court, that under the standards used in applying Title VII the test was not racially neutral. The city could perhaps have demonstrated such neutrality if/when sued; but the court agreed that the city was not required to subject itself to suit. You can complain that the rules were bad or wrong; but that question wasn’t brought by the plaintiffs, and you can’t raise new issues on appeal. I’d be interested in the evidence presented, or the stipulation of the parties, that the test was in fact neutral. The city’s choice was to go with the test, knowing a plaintiff would have a prima facie claim of discrimination; or to start over. Since they got sued anyway, in retrospect maybe they made the wrong choice; the court simply said, they had the right to make the choice.
Try to come up with something, anything really, in the language or legislative history of either the 14th Amendment, or for that matter, of Title VII, which provides that it was the intention of the 14th Amendment founders, or the legislators of Title VII,
Google is your friend; regulations under Title VII provide clear guidelines, based on relative percentages of success among groups on a test, that establish a presumption that the test is not racially neutral. The results of the test in Ricci failed those guidelines, and was not obviously racially neutral to everyone. Your assumptions are interfering with your logic.
See if you can see the same process in the quote you pulled from the dissent:
Insofar as the decision to not certify the results was based on
the race of the high-scoring applicants, however, it is arguable that the deck was stacked against applicants of that race: If too many white applicants obtained high scores, the City stood ready to nullify the results in the hope that non-white applicants would score relatively higher on a subsequent examination.
For another interesting and quite amusing take on this matter, I’d highly recommend Ann Coulter’s column this week. She gets the Ricci case, and exactly what Sotomeyor and the other liberal were up to.
http://www.humanevents.com/article.php?id=32042
This part of her column says it all:
. . .
“Concerned that Sotomayor’s famed “empathy” might not shine through in cases such as Ricci v. DeStefano, the Democrats are claiming — as Obama spokesman Robert Gibbs said on MSNBC — that she was merely applying “precedent” to decide the case. You know, just like conservatives say judges should.
This was an interesting claim, in the sense that it was the exact polar opposite of the truth.
To be sure, there is “precedent” for racial discrimination by the government, but Plessy v. Ferguson was overturned in 1954 by Brown v. Board of Education. If Sotomayor had another case in mind, she wasn’t telling: The lower court’s dismissal of the firefighters’ case was upheld by Sotomayor and two other judges in an unsigned, unpublished opinion, titled, “Talk to the Hand.”
Not only that, but Sotomayor’s fellow Clinton appointee, Jose Cabranes (who sounds like an “empathetic” fellow), issued a blistering dissent from the appellate court’s denial of a rehearing specifically on the grounds that the case “raises important questions of first impression in our Circuit — and indeed, in the nation.”
A “case of first impression” means there’s no precedent. If there were a precedent, it would be a case of, at least, “second impression.”
. . .
Les. If the determination of racial impact rests on results, why have a test? The test in question was created for the purpose of helping black applicants pass. Yet they didn’t. It seems to me that the definition of what a test is, is in question here. If the only test that New Haven will allow is a test that blacks cannot fail, or are not allowed to fail, then we are no longer talking about a test at all.
Let’s cut to the chase here. New Haven has shown that it will engage in any torture of language and law to achieve a racially predetermined result. For those of us who are looking for guidance as to Judge Sotomayor’s mentality regarding race neutrality, New Haven does not look good.
Les, I’m not sure what you mean by “The necessary and immutable means.” Rather than me guessing, could you expand in this?
Les. If the determination of racial impact rests on results, why have a test? The test in question was created for the purpose of helping black applicants pass. Yet they didn’t. It seems to me that the definition of what a test is, is in question here. If the only test that New Haven will allow is a test that blacks cannot fail, or are not allowed to fail, then we are no longer talking about a test at all.
More assumptions, no evidence. First the test is obviously neutral, now it’s designed to discriminate. If there were no requirement to demonize those you disagree with, a fairly straightforward human episode works:
City needs to promote some firefolk; decides, let’s use a test.
Salesman: got a test here, scientifically designed, non-discriminatory, captures ye firefolk skills.
City: cool; do it.
City: yikes; test might be good, might be bad; but if we use these results, somebody could have a good Title VII suit. Let’s try something else.
Lawsuit ensues.
Court: City had the right to start over.
Even if you can demonstrate that the city intended to Put Whitey Down, how do you drag Sotomayor into the scheme? Isn’t she supposed to be a Hispanic racialist, or something? And aren’t they down on the Blacks? And wouldn’t her dreaded empathy kick in for Ricci, who overcame serious personal disabilities to do well on the test? And finally, weren’t there a couple of Obviously Impartial Old White Guys on the decision with her?
I don’t know; it’s a whole lot of work to find a way to criticize a judge for not being an activist, but instead upholding precedent.
Les, I’m not sure what you mean by “The necessary and immutable means.†Rather than me guessing, could you expand in this?
Sorry, Gordianus, that wasn’t a model of clarity. What I was trying to get at was that if your assumption is that the matter at issue (constitution, statute, whatever) is perfectly clear and has an obvious, (relatively) unchanging meaning, then you may be more likely to characterize disagreement as deliberate attack than honest attempt to find answers. The latter being more favorable to all of us getting along as a fractious, diverse gang of human beings.
Les,
What I asked was:
“Try to come up with something, anything really, in the language or legislative history of either the 14th Amendment, or for that matter, of Title VII, which provides that it was the intention of the 14th Amendment founders, or the legislators of Title VII, to provide for a testing process for employment promotions for official positions, whereby governments may take such official actions — ones that everyone agrees are done in an entirely neutral manner with regard to race — but when the consequences of taking those actions do not produce the racial results that are to their liking, they may arbitrarily nullify those entire process, and begin again, until they get obtain the racially-based results they obviously wanted to begin with.”
You instead have opted to answer an entirely different question by telling me that Google was my friend, and you then launched into a discussion of recent regulations implementing Title VII.
How about either addressing the question, or conceding that there is nothing you know of?
By way of background, the entire legal history of the United States Supreme Court’s adjudication of cases arising under the equal protection clause, including the line fully incorporating the amendment through the 5th Amendment due process clause to cases involving virtually any form of “state action†at whatever official level, has represented, to some extent, a results-oriented effort to address racial (and other) disparities by significantly skewing the legal process to the benefit of those folks who are able to demonstrate they are part of or a member of one or another “suspect classification.â€
What started out in the Court as an effort to eliminate invidious discrimination, has evolved into little more than a numbers game, with litigants branding anything other than a result displaying a complete numerical absence of racial disparity, as a constitutionally impermissible result requiring a do-over, regardless of what the intention of the official actor or actors was.
While that may be a bit general, my point is that, however salutary the intention may have been, that legal framework has at the same time created its shadow “other†. . . the undeniable and unequal legal treatment of those who are not members of some suspect classification. White males, for example. Mr. Ricci is certainly one of those so harmed. His argument, which is quite novel, is essentially an effort to turn that rights analysis on its head.
In this case, a high level court is actually giving it’s imprimatur of approval to the actions of an entity that had initially jumped through hoops to implement a racially-neutral testing process for employments promotions, but when the racial composition of the results turned out not to be to their liking, they simply scrapped the results, claiming that they feared being sued!
But the liberals on the Second Circuit Court of Appeals, in their one paragraph dismissal of Ricci’s appeal from the summary judgment by the Federal District Court, initially demonstrated their arrogant attitudes by actually paying lip service to Mr. Ricci, acknowledging his considerable personal achievements – and then promptly blew off his appeal in one short unsigned paragraph order.
Here is exactly what they said in that initial order:
“We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.â€
And then came the power play. Three days before the publication of that order, and four months after they had promulgated it, the majority withdrew the order and entered the same language into a one paragraph per curiam opinion, along with a citation to the previously unpublished district court opinion, thereby converting, and indeed leveraging that district court opinion into the final statement of the law on that point for the entire Second Circuit!
People like Mr. Ricci, who have played no part in discriminating against blacks or other minorities, and who have simply sought equal treatment in the eyes of the law, have been consistently discriminated against because of a numbers game that has evolved over time, one that results-oriented liberals, like yourself and Sonia Sotomeyor, refuse to ever acknowledge.
And for her, it has a big-time power game. She would no doubt seek to convert that blatantly discriminatory rule into the law of the land.
What was it she said again?
“Court of Appeals is where policy is made.â€
“And I know, and I know this is on tape — I should never say that ’cause ‘we don’t make law’ . . . I know. Ummmm . . . uhhhh . . . Okay. I know. I know. I’m not promoting it, I’m not advocating it, I’m . . . you know . . .“
Yes, Sonia. We know the exact word you were grasping for – but dared not say.
You’re creating it!
But, for one thing, you forgot this:
Amendment XIV
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
. . . .
Les, I like your language about a “…..fractious, diverse gang of human beings.” I must point out that we are not a gang but a collection of gangs, the Black gang, the Latino gang, the homo gang and so forth. So my take on this whole business is that if we are to abandon the original intent and the Anglo/Christian culture of the founders, than I am left to defend my own gang against all others. I’ve met a lot of Sotomayors over the years. Given her background and the path she took to her current position, I think it very unlikely that she is an impartial, unbiased jurist. I might be wrong but it would be naive to assume otherwise.
It would be very interesting to read the justification for the business necessity of the tests performed for these two promotional exams.
Oh, no wait. It never got to that, did it?
The firm that prepared the testing materials — at a cost of about $100Gs, I understand — I O Solutions of Illinois — prepared them with the intention of inducing the diversity results “devoutly to be wished” by the City.
And yet, it just didn’t happen!
I suppose that it was inevitable that at some point the guiding constitutional principle of equal protection of the law for everyone would come into conflict with rules and rulings that have plainly been intended to force the implementation of selection processes that would produce quota-like outcomes favoring only certain groups.
Griggs v. Duke Power Co. may eventually go down as a sort of Plessy in reverse, or Plessy-lite, insofar as the decision has had the effect of institutionalizing racialism as the bottom line standard for hiring in compliance with Title VII. The ‘91 amendments undid any chance to ameliorate the long term effects through litigation, short of a declaration on constitutionality.
This Ricci case highlighted that growing divergence, exposing the truly Orwellian character of current employment law and practice — “All pigs are equal, but some pigs are more equal than others.”
I am not, as some have, crying racism, because I personally believe that should be understood as an animus based solely on race. But given the record of racism charges hurled by certain “opinion leaders” over the years for exceedingly small potatos comments, it is certainly not hard to understand why the charges are now flying back the other way.
What is very clear is that the initial actions of Sotomayor and the other liberals on the Court of Appeals — with their first order in this case — were unquestionably aimed at short-circuiting and burying a case that could have easily upset the apple cart by highlighting that divergence. They were not motivated by any concern whatsoever for the litigants in the case, and thereby refusing to offer them anything even faintly resembling equal protection under the law. And that alone should disqualify Sonia Sotomeyor for consideration as a Supreme Court justice. But it won’t.
When it was obvious the dissent would strongly take them on, she and the liberals acted instead to leverage the district court case into the “law” for the entire circuit.
The irony is that the Supreme Court may now (hopefully) be preparing to reverse, giving her — and the President who seeks to appoint her — the sort of exposure that could cause the system to re-boot and right itself.
Trochilus, you are welcome to not like it; but in the real world people and institutions don’t get a free pass by saying “my interpretation of the constitution varies from this regulation (regulations, if you weren’t aware, are and have the effect of law–you don’t get to ignore them), so you can’t sue me!!! No backsies, forever!!!” Neither the city nor the court was at liberty to substitute your fantasies for the controlling law.
Gordianus: So my take on this whole business is that if we are to abandon the original intent and the Anglo/Christian culture of the founders, than I am left to defend my own gang against all others.
Huh. What am I to take from this, and the balance of the comment? That any non-anglo, non-Christian cultural influence is not American, and should be resisted or barred? And that you aren’t against bias per se, you simply want bias in favor of your gang? Well, as I was trying to say, this is the basis for never getting beyond gangs to become a nation.
I should also have said that I must point out that we are not a gang but a collection of gangs, the Black gang, the Latino gang, the homo gang and so forth. assumes a uniformity of politics, intent, goals, etc. that my experience doesn’t support. The most uniform political position in the U.S. these days seems to be “I’m not a Republican,” which cuts across most groups including conservatives, it seems.
Les,
In the real world, many people do recognize the growing gap between the constitutional ideal embodied by the equal protection clause of the 14th Amendment and the original provisions of Title VII, on one hand; and the consequences of the remedial numbers game played by employers and Courts that have increasingly skewed the process on the other hand. It is not a fantasy; it is a reality
For example, Stuart Taylor has posted a very interesting column in the National Journal regarding the import of the Ricci case, as it illustrates the growing divergence between the “the anti-discrimination ideal” embodied in the original Title VII, and the remedial measures initiated by the United States Supreme Court in the line of cases beginning with Grigg v. Duke Power in 1971, intended to eliminate what is deemed to be the “discrimination” that arises from what Taylor identifies as “the use by employers of any merit-based tests or other objective criteria for hiring or promotion that have a “disparate impact” on different ethnic groups — as almost all objective tests have.”
I might have said some of the other things he said in his piece a bit more strongly. But I certainly agree with the premise.
Apparently unlike you, I have actually read the Ricci case. It seems clear to me what Sotomeyor and three judge panel were engaging in with this case — was an obvious power play to prevent the establishing of a record of discrimination against Ricci and the remainder of the plaintiffs. Granting summary judgment in spite of his potent constitutional claims.
On that basis, I agree with Jonah Golberg who I think has correctly pegged this decision by Sotomeyor as “reactionary” in nature, insofar as it attempted to hide the blatant discrimination inherent in too many disparate impact findings by courts.
When Judge Jose Cabranes, nothing that there was the record demonstrated the potential for an unconstitutional quota or set-aside, he quite rightly called them on it with his stinging dissent, noting that potential constitutional dimension to the case. The majority ignored it. The reaction of the liberal majority was to exhume their initial order, already four months old, rename it as a per curiam opinion, and thereby elevate it, and it’s endorsement of the opinion of the Federal District court, to the statement of the law on the subject for the full Second Circuit. Thus by one vote the majority (7-6) succeeded in preventing the entire 2d Circuit from sitting en banc to hear the case, and Mr. Ricci from getting his day in court.
On that point, I agree with Judge Carbranes and the remainder of the group of six judges. That is not a “fantasy.” But Judge Sotomeyor and the liberals would have relegated any similar challenge to the fixed system into the dustbin — summary judgment for all who would challenge their fixed little game!
In fact, Les, the United States Supreme Court has heard the case and, judging from the reports of the oral argument, there is hope that the Court can turn what you insist is fantasy into a revived equal protection ideal, instead of continuing down the road of institutionalized identity politics and unconstitutionally discriminatory presumptions.
For reason I cannot explain, the link above — which should have directed the reader to the National Journal article cited, instead links the reader to another article here in The American Conservative Magazine — oddly enough, it was to one I had not as yet read! So, I have no idea how that occurred.
Here is the correct link to Stuart Taylor’s article in the National Journal. http://www.nationaljournal.com/njmagazine/or_20090530_4112.php
Trochilus, you misunderstand. Of course it’s not a fantasy that there are arguments about Title VII–why, you point out the Supreme Court coming down on the “wrong side” yourself, while decrying the godless liberals on the second circuit as the root of all problems. The fantasy is your need to promote wild conspiracies, hidden motives, attempts to cover the record, “obvious power plays,” blah blah blah. You claim the court’s adoption of the district judge’s opinion prevented Mr. Ricci’s day in court, while trumpeting the chance that the Supreme’s will overturn. You rail that Sotomayor should have overturned Second Circ. policy on hearings, Supreme Court and 2nd circuit precedent on the law, EEOC’s administrative regulations and the will of the people expressed by their legislators in Title VII and other implementing executive action. But I bet you hate them damn activist judges.
It’s appropriate you would cite Jonah G.; but hardly persuasive.
On the subject of convincing, spare me Stuart Taylor–neither his wit nor his impartiality are typically on exhibit:
Stuart Taylor, on a Republican nominee:
Alito’s critics have similarly ignored much evidence that his 15 years of steady, scholarly, precedent-respecting work as a judge tell us more about him than a handful of widely (and misleadingly) publicized memos that he wrote more than 20 years ago.
On a Democratic nominee:
And some may see Sotomayor’s letter [written as an undergraduate] as evidence that she was predisposed to look for the worst, not the best, in the institution that had afforded her such opportunities. She now sits on Princeton’s Board of Trustees.
You’ll excuse me if his pronouncements on the matter are not persuasive.
Ah . . . the life of a liberal troll sputtering away on a conservative website! Must get lonely, huh Les?
All I can suggest (once again) is that you go back and read the actual opinions in Ricci. The case history is extremely curious, particularly when you see the bare majority — the liberals on the 2d circuit — suddenly morph their initial order burying the potent appeal of Ricci and the other plaintiffs, together with the previously unpublished opinion of the trial court, into the statement of the law for the entire the circuit on the question!
Perhaps then you’d begin to understand what Stuart Taylor was saying regarding the historical perspective on disparate impact case law.
I did not say that the Supreme Court came down on the wrong side. His point was that what the Burger Court initially thought would play a remedial role in Title VII cases, has turned into something quite different, and has actually contributed to the erosion of what Taylor terms “the anti-discrimination principle” and the ascendancy of identity politics.
Let’s see . . . will of the people . . . will of the people . . .
Oh, yes, here it is: On Sotomeyor’s views in the Ricci case.