Politics 09: Fire Reid and Steele.

[NotMiki]

This is an extremely disappointing decision.  There was never much chance of the court overturning Prop 8, because, as the majority apologetically describes, California's constitution is ludicrously easy to modify.  But they also more-or-less repudiated their previous decision allowing gay marriages.  The majority in this decision claims that,

"Proposition 8 does not abrogate [equal protection or due process], but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . ."

That's crap.  If there were no substantive difference, they wouldn't have ruled for gay marriage in the first place.  And although it may be all the same in the vacuum of California law, any couple who pays federal taxes knows there is a substance to that difference.

Or, as the sole dissenting justice put it,

"Denying the designation of marriage to same-sex couples cannot fairly be described as a “narrow” or “limited” exception to the requirement of equal protection; the passionate public debate over whether same-sex couples should be allowed to marry, even in a state that offers largely equivalent substantive rights through the alternative of domestic partnership, belies such a description."

[superaielman]

SC pick announced. Where's ID to foam at the mouth when I need him?

[metroid composite]

SC pick announced. Where's ID to foam at the mouth when I need him?

Oh yeah, that; even Fox News opened by saying "incredibly smart and qualified".  Most of the controversy there seems to be focused on this quote "court of appeals is where policy is made":

http://www.youtube.com/watch?v=OfC99LrrM2Q

Which, in the context of the full clip seems to be saying "Court of Appeals you pay attention to precedence, and how your decision will affect future decisions.  District Court you pay attention to justice of the individual case."

Full quote:

The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time.

[NotMiki]

Doesn't seem too controversial.  I imagine the focus will soon be on the case she currently has before the Supreme Court: Ricci v. DeStefano

http://www.nytimes.com/interactive/2009/05/26/us/0526-scotus.html

http://www.scotusblog.com/wp/judge-sotomayors-appellate-opinions-in-civil-cases/

"Perhaps the highest-profile discrimination case in which Sotomayor has participated (though she did not write a signed opinion) is Ricci v. DeStefano, a challenge by a group of white firefighters in New Haven, Connecticut to the city’s decision not to certify an employment test for use in promotions when the use of the test results would have made a disproportionate number of white applicants eligible for promotions than minority applicants.  The city defended its conduct on the ground that it feared that certifying the results of the test would expose it to a discrimination suit by minority applicants.  Sotomayor was part of a three-judge panel that initially affirmed the district court’s judgment in the city’s favor with a summary order that described the district court’s decision as a “thorough, thoughtful, and well-reasoned opinion.”  The order noted that the judges were “not unsympathetic to the plaintiff’s expression of frustration,” but it explained that “it simply does not follow that he has a viable Title VII claim.”  The panel eventually replaced the summary order with a per curiam opinion that was otherwise virtually identical to the order.  530 F.3d 87 (2008).   Sotomayor was one of seven judges of the Second Circuit to vote to deny rehearing en banc; six other judges dissented from the denial.  In January 2009, the Supreme Court granted certiorari, and it heard oral argument in April 2009.  A decision in the case is expected by late June, and it is likely that the Supreme Court will reverse."

EDIT:

http://tpmdc.talkingpointsmemo.com/2009/05/john-yoo-warns-against-results-oriented-sotomayor.php

No self-awareness or no sense of decency.  I'll go with the latter.

[InfinityDragon]

Sotomayor is the best choice for Obama based on the criteria he was looking for. That is, a female--preferably a minority--who places an emphasis on "empathy." She's certainly better than Obama's other top picks: Diane Wood, who knows nothing outside competition law and is incredibly egotistical, and Elena Kagan who is just batshit insane.

So...she's the best choice for Obama, but she sure as hell isn't the best choice overall. This stems from the fact that Obama's criteria is a fucking joke. Empathy should not be in a judge's mind. Ever. Empathy belongs to the lawyer making the case before a judge and in the legislature that is creating the laws that will be interpreted.

Sotomayor's big problem is that she ALWAYS GETS REVERSED. Seriously. Something like 80-90% of her opinions have been reversed by the Supreme Court. Either she is trying to interpret the law in a stupid way or she does not understand the law. Either way, to put someone with that pathetic a track record into the same court that consistently reverses her is more than a little irritating.

The good news? Sotomayor is replacing Souter. Souter is the biggest douche and by far the worst justice on the court right now. As bad as Sotomayor is as a choice, the court will be better off due to the simple fact that Souter is leaving.

I still don't see the Obama administration as anything more than a mockable clusterfuck of a joke at this point, though. What else is new.

[NotMiki]

Sotomayor's big problem is that she ALWAYS GETS REVERSED. Seriously. Something like 80-90% of her opinions have been reversed by the Supreme Court. Either she is trying to interpret the law in a stupid way or she does not understand the law. Either way, to put someone with that pathetic a track record into the same court that consistently reverses her is more than a little irritating.

That's a stupid way of looking at a judge's record.  As you are well aware, the Supreme Court mostly takes cases they want to make a point with, and that means reversal more often than not (in recent years, about 75% of cases they take have been reversed).  She has, of course, decided hundreds of cases the Supreme Court never took up because her conclusions were noncontroversial in their eyes.  Do you even know who was in the majorities of the cases she had overturned?

EDIT: as for the empathy thing, take a look at the recent SCOTUS case with the strip-searched girl.  One of the male justices, Breyer I think, was skeptical that merely being strip-searched for prescription drugs could be all that traumatic (as the girl, who dropped out of school as a result, claimed), and said he was in similar situations in school, and nothing came of it.  Well, maybe it wasn't traumatic for him back when he was a kid, but a girl in this day and age is in a different situation.  One the justice did not seem to appreciate.  The reasonableness of the search is very much dependent on the extent to which it traumatizes the target, so that's a problem.  Empathy is about being able to understand this kind of thing.  Doesn't mean you always side with sympathetic defendants.  Just means you have a more complete understanding of their situation.

[InfinityDragon]

That's a stupid way of looking at a judge's record.

Oh look, a non-lawyer presuming to lecture me about how the legal world works.

Sorry, but a judge's record of subsequent case history is their most important statistic. Moreso for a District Court judge, because all cases are granted a first appeal and thus more of a record is established, but its important for appellate judges as well.

As you are well aware, the Supreme Court mostly takes cases they want to make a point with,

No. No they do not. The Supreme Court in fact tries to do that exact opposite. If the Supreme Court can avoid ruling on a contentious subject through any other means, then the Court will take it. Taking cases is a matter of last resort.

and that means reversal more often than not (in recent years, about 75% of cases they take have been reversed)

Useless statistic is useless. This is not a game of "Deal or No Deal" where the odds are fixed and you have a 25% chance of winning your case at the Supreme Court. It means that 75% of the appellate judges were incorrect in interpreting the law and only 25% were correct. Sotomayor often falls into the "losing" category because she was incorrect, not because she was unlucky and didn't roll a 4 on a 1d4. Period.

She has, of course, decided hundreds of cases the Supreme Court never took up because her conclusions were noncontroversial in their eyes.

The Supreme Court only has time for a handful of cases per year. They don't have time to take up every appeal and and review every appellate court opinion. Many of her court opinions were not reviewed. This does not mean that they were correct or incorrect opinions. It simply means the Supreme Court decided to not hear the case for whatever reason.

Do you even know who was in the majorities of the cases she had overturned?

Irrelevant. Part of practicing law is knowing how law will be interpreted and applied. This means that a judge should use reason and look at both the prior history *and* possible future interpretation of a law. Note that this does not mean that an appellate judge should try to second-guess the Supreme Court simply to get more "wins", because the Supreme Court can always overrule its own previous opinions by relying on previous appellate or dissenting opinions.

[Dunefar]

North Korea fires 2 more short-range missile tests right after its nuclear test (which was stronger than the 2006 one and is drawing condemnation from traditional NK allies, notably China and Russia).

http://news.yahoo.com/s/ap/as_koreas_nuclear

I'd be more worried, but I can't shake the feeling that NK's allies are getting sick of this shit. Russia and China have too much going on to deal with a crackpot dictatorship throwing an extended temper tantrum.  This might be optimism talking, though.

---

To the above: Away from the relative merits of Obama's SC candidate, do you think there is any chance she'll not be approved?

[Shale]

Useless statistic is useless. This is not a game of "Deal or No Deal" where the odds are fixed and you have a 25% chance of winning your case at the Supreme Court. It means that 75% of the appellate judges were incorrect in interpreting the law and only 25% were correct. Sotomayor often falls into the "losing" category because she was incorrect, not because she was unlucky and didn't roll a 4 on a 1d4. Period.

No. You don't get to call the SC full of shit (re: Roe) and then turn around and use agreeing with them as a yardstick of legal virtue. Never mind the possibility that Obama read her decisions and felt that when she was overruled by the Supremes, she was right more often than not. Seems to me that'd be a pretty good way to choose a justice.

[metroid composite]

Oh look, a non-lawyer presuming to lecture me about how the legal world works.

I certainly can't lecture you, but this is the DL: people here are smart.  I've had people here argue with me, and prove me wrong on math, and I am a mathematician.  (Rare, but it happens).  I don't see why qualifications should restrict someone from presenting counterarguments.

Or, alternatively, let's say there was a lawyer who went to Harvard Law, who ran the Harvard Law Review journal, and who worked as a professor of constitutional law for 12 years.  If qualifications were everything then I assume we would take this hypothetical lawyer's opinion over yours, right?  'Cause such a lawyer exists, is named Barrack Obama, and seems to think Sotomayor is a good candidate.  Qualifications aren't everything--that's precisely why we're questioning Obama here.

[SnowFire]

Quick points of order:

A) The empathy kerfuffle was overblown.  Obama gave a long laundry list of traits he wanted, and the vast majority of them are noncontroversial.  The worry is that "empathy" was a codeword for "liberal judicial activist who rules for the sympathetic side not the right side."  A fair enough concern, but it's not like Obama was decreeing that touch-feeliness was the most important requirement for the job, or that non-Infinity Dragon conservatives think that judges by necessity must be mentally ill people lacking empathy.

B) ID is correct that reversal rate is the one stat to rule them all in the legal world, but I'd be curious as to what her reversal rate was as a District Court judge.  The Appeals Court probably rules on too many areas which are unsettled policy and thus not really a good indicator of competence; if she was constantly getting overruled before, at a lower level, that IS a bad sign.  Googling comes up with a defense from dailykos, which I have no idea how much is worth: http://www.dailykos.com/storyonly/2009/5/26/735716/-The-Truth-About-Sonia-Sotomayors-Reversal-Rate

C) Surprised it wasn't linked yet/again, but for those who haven't seen it check out Jeffrey Rosen's article:  http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085  Rosen is not a hack, and while she's certainly miles better than Harriet Miers, it's possible that we're getting stuck with a middling justice (for what's expected of Appeals Court justices, at least), rather than the cream of the crop expected for SC nominees.  This is the far bigger concern as best I can see.

D) Sotomayor is allegedly also more moderate than Kagan or Wood.  This is good or bad depending on your views, I guess.  Also, this'll be 6 (!) Catholics on the Court.  Weird.

This nomination is also a cruel trap for the Republicans if Rosen is right - a perfectly awesome justice who happened to be liberal would likely have sailed through no problem 90-10 or the like, but nomming a meh but okay candidate might tempt them into voting against her, which could then be (unfairly, in most cases) presented as evidence of a "screw you Hispanics" sentiment.  Ugh.

[InfinityDragon]

No. You don't get to call the SC full of shit (re: Roe) and then turn around and use agreeing with them as a yardstick of legal virtue.

Oh, so because the Court occasionally writes bad opinions means I think its full of shit? Certainly everyone but White supremacists should think the Supreme Court is totally worthless shit because they wrote Dred Scott 152 years ago. Also, did you not read where I said, quite explicitly, that agreeing with the Court for the sake of agreeing with the court does not necessarily make a good judge?

Is it a perfect measure? No. Did I claim it was a perfect measure? No. It's simply the best, objective measure to see how often a judge is deemed to be incorrect by the highest court in the land. Did I say that her history of reversal makes her completely unsuitable as a justice? No. I said that being deemed incorrect on 6 out of 7 cases is her biggest obstacle (3 of them being flat out reversals, I think).

Now, since you seem so enlightened about what makes a good judge and show disdain for the method of examining case history, would you care to enlighten me as to an objective measure that can be used in evaluating a potential Supreme Court Justice?

Never mind the possibility that Obama read her decisions and felt that when she was overruled by the Supremes, she was right more often than not. Seems to me that'd be a pretty good way to choose a justice.

Well, unfortunately for Obama, his opinion wouldn't matter if this was the case. Just because Obama thinks someone would make a good justice because he agrees with her outcomes does not mean that she would in actual fact be a good justice. I could believe that Jack Thompson would make an awesome justice based on his legal arguments, but I think most of us would agree that I'd be wrong.

I don't see why qualifications should restrict someone from presenting counterarguments.

Counterarguments are fine as long as there's some factual or logical basis behind them. To start off a post calling something stupid, then giving reasoning based on clearly erroneous "facts" is not a counterargument. More to the point, those clearly erroneous facts would not have been made by someone who had spent any amount of time doing legal work. It was not meant as a statement of qualification; it was a blunt way of saying to do more research before calling someone's idea or method stupid when they have vastly more experience in that field than you.

If qualifications were everything then I assume we would take this hypothetical lawyer's opinion over yours, right?

Well now, that would entail everyone actually knowing my "qualifications." Nobody here does.

[Dunefar]

I'm curious now. ID, what ARE your qualifications?

[Shale]

Oh, so because the Court occasionally writes bad opinions means I think its full of shit?

There's also your rather unhidden disdain for individual justices on the court, which makes it somewhat odd that you'd also back a rubric that rewards lower judges for agreeing with them, but I admit that's an attack on you personally rather than the system in question.

Now, since you seem so enlightened about what makes a good judge and show disdain for the method of examining case history, would you care to enlighten me as to an objective measure that can be used in evaluating a potential Supreme Court Justice?

"Objective measure"? No. The only way I'd want to evaluate a candidate for the highest court in the country is to actually read her opinions, and those of higher courts hearing appeals of her cases. Like in sports, stats are a nice tool, but they're no substitute for actually watching the proverbial games. Especially when you're dealing with a sample size of seven whole cases. That doesn't even scare me, and I only took undergrad law courses.

Well, unfortunately for Obama, his opinion wouldn't matter if this was the case. Just because Obama thinks someone would make a good justice because he agrees with her outcomes does not mean that she would in actual fact be a good justice.

Her outcomes? Do I have to specify that reading decisions that she writes also involves looking at her reasoning? Christ, you are a lawyer.

I could believe that Jack Thompson would make an awesome justice based on his legal arguments, but I think most of us would agree that I'd be wrong.

Yes, and that would be proved as soon as somebody asked which of his legal arguments you thought were so awesome, and you in turn yelled "LOOK OVER THERE!" and fled the country. If Obama defends the pick in a similar way, then you're on to something. Otherwise, it's back to reading her opinions and seeing if they're well-reasoned or not.

[NotMiki]

That's a stupid way of looking at a judge's record.

Oh look, a non-lawyer presuming to lecture me about how the legal world works.

Sorry, but a judge's record of subsequent case history is their most important statistic. Moreso for a District Court judge, because all cases are granted a first appeal and thus more of a record is established, but its important for appellate judges as well.

In baseball, a fielder's errors-over-chances is seen as his most important statistic.  However, it is misleading because balls that a slow fielder might not get to but a fast fielder does aren't considered at all for the slow fielder.  Those balls are more difficult to play, and more likely to cause errors, so fast fielders can wind up with a worse stat line but still be superior players.  I'm not telling you how the legal world looks at her record.  If they obsess over a stat formed by 6 (soon to be 7) cases and ignore the broader picture, they're wrong too.

--

Anyway, here a couple of summaries of Sotomayor's record.  First is the cases she's had before the supreme court, and second is a summary of her record in civil cases on the appellate court.  The one-sidedness of some of the reversals is a bit worrisome, but the summary of her appellate work paints a more favorable picture; this is not a woman who has ruled in a rigidly ideological fashion.

http://oneconservativevoice.blogspot.com/2009/05/sotomayor-cases-reviewed-by-supreme.html

http://www.scotusblog.com/wp/judge-sotomayors-appellate-opinions-in-civil-cases/

--

C) Surprised it wasn't linked yet/again, but for those who haven't seen it check out Jeffrey Rosen's article:  http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085  Rosen is not a hack, and while she's certainly miles better than Harriet Miers, it's possible that we're getting stuck with a middling justice (for what's expected of Appeals Court justices, at least), rather than the cream of the crop expected for SC nominees.  This is the far bigger concern as best I can see.

The shitstorm regarding that article has come and gone.  Here are two criticisms of it.

Regular:
http://dissentingjustice.blogspot.com/2009/05/hatchet-job-jeffrey-rosens-utterly.html

Extra Spicy:
http://www.salon.com/opinion/greenwald/2009/05/05/tnr/index.html#postid-updateA5

[Shale]

http://oneconservativevoice.blogspot.com/2009/05/sotomayor-cases-reviewed-by-supreme.html

I've finally got some time to actually look over her record (woo, short deadline! Kill me.), and one of those cases looks like they got the decision wrong. On  Empire Healthchoice Assurance, Inc. vs. McVeigh, OCV says she was reversed, 5-4, but Ginsburg's decision affirms the court of appeals verdict.

[Yakumo]

If qualifications were everything then I assume we would take this hypothetical lawyer's opinion over yours, right?

Well now, that would entail everyone actually knowing my "qualifications." Nobody here does.

Get off your goddamn high horse already, ID.  We all know that up until recently you've been in law school, so no matter what your qualifications are they can't hold a candle to Obama's.  Look, I like reading your informed opinions and all but you have to learn to realize that opinions is all they are and quit talking down to people like they can't possibly know anything.

[metroid composite]

Well now, that would entail everyone actually knowing my "qualifications." Nobody here does.

Ah, but I'm a mathematician.

I don't know your qualifications, but I have known you for...8 years or so, and I remember you starting law school sometime during that 8-year stretch.

I don't know what law school you went to, but I do know that Harvard Law is pretty much universally considered the best in the country, so I can make a <= statement there.

I don't know what law journal you've worked on, but again know that the Harvard Law Review is ahead of similar journals, so I can make a <= statement there.

I don't know how long you've worked as a senior professor of constitutional law (or similar position) but given that I'm fairly sure you started law school sometime within the past 8 years, that means you can't have been a senior professor of constitutional law for more than 4 or 5 years, which is strictly less than 12 years.

Basically, I see two ways to beat qualifications; quality (better programs, graduating with top honours, etc), and quantity (more experience, more time studying the system).  Obama's got 16 years = more quantity than ~8 years.  Quality-wise, Obama's qualifications seem pretty top-tier; a person might match him quality-wise, but I don't really see a way that someone would cleanly out-quality his qualifications.


So actually no: I'm pretty sure I don't need to know your qualifications to say that Obama has more qualifications right now.  I don't know how much more.  However, mathematically a > inequality does not require knowing both sides of the equation, just knowing some properties of both sides of the equation.

[InfinityDragon]

"Objective measure"? No. The only way I'd want to evaluate a candidate for the highest court in the country is to actually read her opinions, and those of higher courts hearing appeals of her cases. Like in sports, stats are a nice tool, but they're no substitute for actually watching the proverbial games.

So when her legal opinions lead her to being deemed incorrect 85% of the time, this does not warrant suspicion; all that matters is her opinion and not what other authorities believe of her opinion? That, simply put, is a poor way of evaluation. Peer review in a professional work field is important (especially when said peers can say you're wrong with the force of law backing them) and to completely discount it is foolish.

Her outcomes? Do I have to specify that reading decisions that she writes also involves looking at her reasoning? Christ, you are a lawyer.

Way to focus on one word and ignore the rest of what I said. Regardless, it doesn't matter what Obama thinks of Sotomayor's reasoning either since he is not in a position to deem what opinions are legally valid and which ones are to be reversed . If Obama agrees with her reasoning, then that simply means he is, at the moment, agreeing with legal reasoning that has been deemed wrong by the Supreme Court.

If they obsess over a stat formed by 6 (soon to be 7) cases and ignore the broader picture, they're wrong too.

Obsessing over her record and voicing concern over it are completely different. Sotomayor has a weak record and it will be her biggest stumbling block, if any (unless Obama's team fails at shutting down those pointless concerns over her comments made in a non-formal school panel). You simply can't argue against this.

If Sotomayor offers a solid enough reason why her opinions don't fare well when reviewed by the Supreme Court, or alternatively makes a persuasive argument that her poor record should be overlooked for various reasons, then fine, she passes muster and we get a justice who isn't as loony near as Souter.

http://oneconservativevoice.blogspot.com/2009/05/sotomayor-cases-reviewed-by-supreme.html

No offense to you personally, but that link has stupid citations. The citations are for the Appeals Court opinions only...which is pretty pointless if you're trying to make the case that the Supreme Court is calling said opinions bad when you don't cite to the Court's opinion as to why.

The shitstorm regarding that article has come and gone.  Here are two criticisms of it.

Yeah, that Rosen article was pretty bad and had a number of questionable "facts" or poor sources to support it.

Ah, but I'm a mathematician.

Mathematicians must be pretty awesome then, being able to turn unquantifiable factors such as "law school attended" and "journals worked on" into quantifiable factors as they relate to the ability to evaluate a Supreme Court nominee.

[Yakumo]

Ah, but I'm a mathematician.

Mathematicians must be pretty awesome then, being able to turn unquantifiable factors such as "law school attended" and "journals worked on" into quantifiable factors as they relate to the ability to evaluate a Supreme Court nominee.

If they're not, then what makes you so much more qualified than he is?  I would say that all this experience in the field of CONSTITUTIONAL LAW makes him pretty well qualified to make decisions regarding a court that does nothing but this.  Tell me, what exactly makes you suddenly THE expert on this subject to say why he's wrong and NOBODY can question your reasoning?  Hint: nothing does.  Stuff it.


EDIT: Just to be clear here, I'm not saying you're right or wrong.  What I'm saying is you need to respect other people's right to an opinion.  You are not stating 100% incontrovertible fact here, neither is anyone else.  This is a place for discussion, not to browbeat people into accepting your view on things.

[Grefter]

Too personal.  Tone it back.

[Shale]

So when her legal opinions lead her to being deemed incorrect 85% of the time, this does not warrant suspicion; all that matters is her opinion and not what other authorities believe of her opinion? That, simply put, is a poor way of evaluation. Peer review in a professional work field is important (especially when said peers can say you're wrong with the force of law backing them) and to completely discount it is foolish.

Okay, first of all, I thought reading the opinions of courts reviewing her work was recognizing the importance of peer review. It just recognizes the fact that an appeal, especially an appeal to the Supreme Court, isn't as simple as "upheld" versus "overturned." I'm not saying completely discount it, I'm saying you read the damned opinions instead of treating the statistic as authoritative. Statistics are shorthand, and they can lie in a way that genuine analysis doesn't - for instance, a judgment that overturns the precedent the appeals court followed is "scored" the same as a judgment that lambastes the appeals court for not following precedent. Especially when the numbers are wrong, e.g. the claim that the Supremes reversed her all but once.

...it doesn't matter what Obama thinks of Sotomayor's reasoning either since he is not in a position to deem what opinions are legally valid and which ones are to be reversed . If Obama agrees with her reasoning, then that simply means he is, at the moment, agreeing with legal reasoning that has been deemed wrong by the Supreme Court.

Yes, and if he wants to change the prevailing legal reasoning of the court, so that the legal reasoning he agrees with will be applied in the judiciary, that's a valid reason to pick a judicial nominee. You're saying (or seeming to say) that there's a right way and a wrong way to interpret laws, and the right way is whatever the Supreme Court holds. But what the Supreme Court holds changes all the damn time, and it changes because new people with different interpretations of the law get appointed. If you pick new SC justices based on how much they agree with the current Supreme Court....well, first of all, you'd have to gauge Sotomayor on how close her thinking is to Souter's, and I don't think you want that. But also you'd get intellectual stagnation.

To use the most obvious example, current jurisprudence holds that abortion is protected by the Constitution. If a President McCain nominated a judge with a history of ruling counter to that, do you really think the debate would be about competence, and not about competing legal frameworks?

[metroid composite]

Ah, but I'm a mathematician.

Mathematicians must be pretty awesome then, being able to turn unquantifiable factors such as "law school attended" and "journals worked on" into quantifiable factors as they relate to the ability to evaluate a Supreme Court nominee.

That's exactly what I was arguing.  Namely....

Being a lawyer does not necessarily make you the most competent person to comment on evaluating a Supreme Court Nominee.

Similarly, being a top graduate of Harvard Law, president of the Harvard Law Review, and a 12-year professor of constitutional law does not necessarily make you the most competent person to evaluate a Supreme Court Nominee.

[InfinityDragon]

If they're not, then what makes you so much more qualified than he is?

Point to where I ever said that I'm more qualified than Obama. Don't spend too long looking, because I didn't. Nor was it insinuated or implied.

I'm not saying completely discount it, I'm saying you read the damned opinions instead of treating the statistic as authoritative.

Why are you arguing this point with me? Unless you're only reading my responses to you and not the entire topic, I said this earlier to NotMiki:

"Obsessing over her record and voicing concern over it are completely different. Sotomayor has a weak record and it will be her biggest stumbling block, if any (unless Obama's team fails at shutting down those pointless concerns over her comments made in a non-formal school panel). You simply can't argue against this.

If Sotomayor offers a solid enough reason why her opinions don't fare well when reviewed by the Supreme Court, or alternatively makes a persuasive argument that her poor record should be overlooked for various reasons, then fine, she passes muster and we get a justice who isn't as loony near as Souter.

So, no, I'm not saying the statistic is absolute and I never did. What I did say is that having a bad track record raises questions, and those questions need to be answered. Since Obama and Sotomayor are the ones pushing for her appointment, the burden is on them to eliminate any misgivings raised by her track record, since a bad track record *is* considered a negative trait in the legal world.

Yes, and if he wants to change the prevailing legal reasoning of the court, so that the legal reasoning he agrees with will be applied in the judiciary, that's a valid reason to pick a judicial nominee.

Not necessarily. If Obama agrees with her method of jurisprudence, and her method being different from the Supreme court is what causes her to be reversed most of the time, then its a valid reason. Judges are allowed to have some flexibility in their own methods of jurisprudence.

However, if its her application and knowledge of relevant law that Obama agrees with, and the Supreme Court often reverses her because she is misapplying the law and/or does not understand the relevant law, then things are not so peachy. Judges are supposed to have competence and knowledge of the relevant law, thus making judicial incompetence a solid reason why a nominee should not be permitted to be on the Supreme Court.

You're saying (or seeming to say) that there's a right way and a wrong way to interpret laws, and the right way is whatever the Supreme Court holds. But what the Supreme Court holds changes all the damn time, and it changes because new people with different interpretations of the law get appointed.

That would be exactly the same methodology as "the only way I'd want to evaluate a candidate for the highest court in the country is to actually read her opinions, and those of higher courts hearing appeals of her cases."

Regardless, as I already mentioned, there is far more to being a judge than method of jurisprudence. Competency, knowledge, impartiality...all of these (and more) are traits needed in a judge. Now then, going back to Obama supporting Sotomayor's reasoning. Again, the Supreme Court has disagreed with her more often than not, meaning her reasoning is legally incorrect for one reason or another. This could be a simple gap in methodology, it could be because she is bad at applying statutes relevant to the cases at hand, or it could be some other reason.

Of all the reasons Sotomayor could be wrong, only one of them could have the possibility of becoming valid if the case were to come up again (under the same laws and circumstances, obviously): a difference in interpretation. Mind, even if it was even a difference in interpretation, the burden would still fall on Sotomayor to convince the Court why her reasoning should be adopted. This is why you should be wary of a judge with a poor track record.

If you pick new SC justices based on how much they agree with the current Supreme Court....well, first of all, you'd have to gauge Sotomayor on how close her thinking is to Souter's, and I don't think you want that. But also you'd get intellectual stagnation.

Ah, but what if someone were to nominate a Justice based on excellent ability to use formal reasoning, apply statutes, and had an ironclad knowledge of the law and therefore the Court upheld the vast majority of that judge's decisions?

That's exactly what I was arguing. Being a lawyer does not necessarily make you the most competent person to comment on evaluating a Supreme Court Nominee.

Then may I ask why you never responded to this:

"It was not meant as a statement of qualification; it was a blunt way of saying to do more research before calling someone's idea or method stupid when they have vastly more experience in that field than you."

instead of trying to say the same exact damn thing a second time with the addition of inequality symbols?

[metroid composite]

That's exactly what I was arguing. Being a lawyer does not necessarily make you the most competent person to comment on evaluating a Supreme Court Nominee.

Then may I ask why you never responded to this:

"It was not meant as a statement of qualification; it was a blunt way of saying to do more research before calling someone's idea or method stupid when they have vastly more experience in that field than you."

I don't have much to add on the italicized response.  If you want me to comment on them, I guess I'd say that the blunt method wasn't too well-received.  (Personally when I feel someone hasn't done enough research, I generally politely point them to some reading material).

instead of trying to say the same exact damn thing a second time with the addition of inequality symbols?

What I responded to the second time was your statement "mc: you don't have enough information to make such a claim, because you are lacking exact information", to which I responded "actually, I did have enough information to make such a claim, because mathematically I only require inexact information."