Only Republicans Can Drive Latinos to the Democrats
The Democratic Strategist notes Bill Pascoe’s CQ Politics article “Did Obama Just Use the Sotomayor Nomination To Lock in Florida?” The piece notes that not only is Florida’s Hispanic population large and growing, it’s increasingly composed of Puerto Ricans rather than Cuban-Americans.
That said, I think this line of thought is somewhat misguided. George Bush appointed minorities to a number of high-profile positions, and I don’t ultimately think that having elevated a Hispanic judge to the Supreme Court in place of Samuel Alito would have done much to move votes. Ultimately, I just see little evidence that these kind of appointment decisions have a huge impact on voting.
But what you could see having some impact is less Obama’s decision to appoint Sotomayor than reaction to the conservative reaction to Sotomayor. I think if you look at election results over time, it’s clear that a large number of non-white or non-Anglo Americans seem to have the sense that the Republican Party and the conservative movement don’t have their best interests at heart. And when people see conservatives not just saying “well, I’m a conservative and Sotomayor isn’t, so I’m not happy about the choice” but engaging in bizarre tirades against the “unnatural” pronunciation of her name and the evils of Puerto Rican cuisine while suggesting that the kind of resume that was suitable for Samuel Alito doesn’t cut the mustard for Sonia Sotomayor, well then I think that tends to reenforce the sense that conservatives are very interested in white people’s problems and not so interested in anyone else.
That’s damaging. But that’s not really about Obama picking Sotomayor, it’s about the crazies on the right coming out to play.
131 Responses to “Only Republicans Can Drive Latinos to the Democrats”
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May 28th, 2009 at 10:51 am
I hope you meant plain yellow mustard, pardner, ’cause we TruAmericans don’t appreciate that foreign stuff.
May 28th, 2009 at 10:55 am
Except it’s not the crazies. If there’s a political party whose central strategy for the past 45 years has been white resentment (i.e., the Republicans), it’s not the crazies solely who are making these bizarre statements – since voicing white resentment isn’t some sort of irrationality, it’s what that party has always done to achieve power.
It’s just that there are enough Hispanics (versus 1965-1990) to make it a bad political strategy NOW, when it was a quite excellent political strategy before.
May 28th, 2009 at 11:01 am
Presuambly, Republicans standing firm against a racist nominee like Sotomayor will not cost them any votes.
Most people are against racism, no matter what their ethnic background. To be sure, hardcore left-wingers, such as Matthew, seem be be embracing racism. But conservatives can’t expect to get the votes of the hardcore racist supporters like that anyway.
May 28th, 2009 at 11:01 am
I actually think both effects are likely.
Taking a step back, my sense is that Obama is trying to foster a long term political relationship with Hispanic voters (one that could persist beyond his personal time in office). Hispanic voters in turn know they were crucial to helping Obama get elected, and that they likely will be crucial to Obama getting re-elected. So it is not that choosing Sotomayor is trying to create something out of a vaccuum–it is part of cementing an already developing relationship.
For similar reasons, I disagree with the notion that George W. Bush had no such similar opportunity. Again taking a step back, Hispanic voters were actually crucial to his rise in politics as well, and again he was trying to turn that into a more long term trend. Of course those efforts died when the nativists in the GOP killed immigration reform. But if that hadn’t happened, and if Bush had nominated a Hispanic Justice instead of Roberts or Alito, I think that could well have helped solidify the GOP’s gains among Hispanic voters.
Of course I realize that people are looking at some historic data and concluding all this is unlikely. But I would suggest that argument isn’t terribly convincing: the sample size of relevant high-profile nominations is small to begin with, and again my thesis is that these effects would only show up when such a nomination was coupled with pre-existing and already meaningfully successful efforts to the same end.
May 28th, 2009 at 11:02 am
I hope you meant plain yellow mustard, pardner, ’cause we TruAmericans don’t appreciate that foreign stuff.
I’m led to believe Grey Poupon is OK as long as you call it Freedom Spread.
May 28th, 2009 at 11:06 am
I pity Al’s clients.
May 28th, 2009 at 11:07 am
Presuambly, Republicans standing firm against a racist nominee like Sotomayor will not cost them any votes.
Again, Al, I wonder if you actually think the Republicans going after Sotomayor by calling her a racist is good politics, or if you are just trying to make some other point.
May 28th, 2009 at 11:08 am
Keep it up, Al.
People like you are making it happen.
May 28th, 2009 at 11:08 am
Even after he became hopelessly unpopular, President Bush was able to get a Democratic congress to do exactly as he dictated. The only major legislative setback he suffered throughout his presidency was on immigration reform and amnesty, and that defeat came at the hands of Republicans. Obviously the party has decided that white resentment will be its ideology for the next generation as it was for the last.
I’m not perfectly certain that’s such a terrible political strategy, but it’s definitely what Republicans have decided to do.
May 28th, 2009 at 11:08 am
In this context we should be talking about Texas as well as Florida. If the GOP firmly positions itself as the official anti-Mexican party (where ‘Mexican’ in GOP-speak is coextensive with ‘Latino’ in standard American English), it will be impossible for them to win a presidential election by 2016 or 2020.
May 28th, 2009 at 11:09 am
Re Al
Mr. Al presents the perfect example of application of the Josef Goebbels strategy to the issue of Judge Sotomayers’ nonexistent racism. Keep repeating the same big lie loudly and often and eventually people will come to believe it.
May 28th, 2009 at 11:12 am
It’s a symptom of a larger problem: the lack of a rational right.
May 28th, 2009 at 11:16 am
I pity Al’s clients.
Now, now, no reason to bring clients into this just because you’re upset that ManU got demolished yesterday.
May 28th, 2009 at 11:18 am
… case in point.
May 28th, 2009 at 11:18 am
josh marshall at talking points memo said it best today: they just can’t help themselves.
republicans have been playing this game for so long, and it has been successful for them, and they cannot move away from a strategy and conduct that has actually worked so well in the past.
the cost/benefit has worked to their advantage previously and so they keep returning to it.
when they used the strategy against african-americans, the numbers worked to their advantage. now, the numbers are working against them – african-americans and hispanics are likely to have similar reactions to these strategies, and end up similarly alienated – but they lack a plan b.
sooner or later – hopefully later – they will figure it out.
May 28th, 2009 at 11:19 am
What is extremely stupid about the Republican approach is that they are distracting THEMSELVES away from discovering Sotomayor’s more substantial shortcomings.
NOTE, however, that when I refer to “Sotomayor’s more substantial shortcomings” , I am referring to shortcomings as viewed by the Republican base, not what I personally would necessarily consider a shortcoming.
I find it hard to believe that any judge can make rulings that would not piss off at least 40 percent of the population if known. So the Republicans should be uncovering Sotomayor’s documented positions on hot-button issues that divide us. The Second Amendment, for example. Or abortion, illegal immigration, etc.
I very much doubt Republicans can block this nomination. The most they can do is make it controversial enough to rally their supporters and make them forget 8.9 percent unemployment, $11.3 TRILLION in federal debt, and 4500+ dead US soldiers caused by past Republican irresponsibility.
But while we still have a casual kind of racism in many parts of America, I think the group of hard-core, passionate racists is rather small. Much smaller than those who advocate gun rights, are anti-abortion,etc. So I really don’t see where the Republicans are going with this.
May 28th, 2009 at 11:20 am
The only major legislative setback he suffered throughout his presidency was on immigration reform and amnesty, and that defeat came at the hands of Republicans.
Um, Social Security reform? Making his tax cuts permanent?
In fact, let’s turn this around: what were Bush’s major legislative accomplishments during his second term?
May 28th, 2009 at 11:20 am
The only major legislative setback he suffered throughout his presidency was on immigration reform and amnesty, and that defeat came at the hands of Republicans.
Social Security.
May 28th, 2009 at 11:20 am
Social Security privatization also failed, but that one was because of Democrats.
Also he never went to Mars, but that one was because of reality.
May 28th, 2009 at 11:22 am
I predict that Obama keeps quiet and lets the Republicans cover themselves with “glory” for two or three days, and then we start seeing Sotomayor on stage with the most popular political figure in America, Michelle Obama.
May 28th, 2009 at 11:23 am
Iraq War appropriations sans a timeline.
May 28th, 2009 at 11:25 am
Spanish-surnamed elites like the Democrats because the Democrats like ethnic preferences for Spanish-surnamed elites.
May 28th, 2009 at 11:25 am
Again, Al, I wonder if you actually think the Republicans going after Sotomayor by calling her a racist is good politics
I think anytime you point out that the other side is filled with apologists for a racist, you come out ahead politically.
Even left-winger Dana Milbank agrees that the statement was about “the superior judgment of Latinas”. Which is racist.
Ultimately, of course, it will probably not amount to much. Supreme Court nominations are important to the base voters of each side, but will not move lots of independents to vote. And certainly there is zero chance that the right wing’s actions against Sotomayor will harm the Republican Party – after all, the left-wing crazies’ high tech lynching of Clarence Thomas did nothing to affect the Democratic Party.
May 28th, 2009 at 11:26 am
Well, and then there’s the loss of both houses in 2006 ….
May 28th, 2009 at 11:29 am
I find it hard to believe that any judge can make rulings that would not piss off at least 40 percent of the population if known. So the Republicans should be uncovering Sotomayor’s documented positions on hot-button issues that divide us. The Second Amendment, for example. Or abortion, illegal immigration, etc.
The problem is that they are in the 40% on all those issues. So focusing on specific legal issues would actually just help cement their minority status.
If they were really smart, and not captives of their special interest groups, I think they would actually try to take as much shared ownership of Sotomayor as possible. They could talk about how she was appointed by George H.W. Bush. They could point out she is highly qualified and a great American story. Then they could try to arrange an overwhelming vote in her favor, like Justices O’Connor and Scalia got back in the day.
They won’t do that, of course, but I think it is really the only plausible approach from a national politics standpoint.
May 28th, 2009 at 11:30 am
Except that he didn’t say it was “racist.” He also noted ‘Gibbs would have done well to mention Sotomayor’s line in that same speech in which she said that “we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group.’
Fail.
May 28th, 2009 at 11:31 am
frankie d says: now, the numbers are working against them – african-americans and hispanics are likely to have similar reactions to these strategies, and end up similarly alienated – but they lack a plan b
Obama is playing chess while the GOP is playing checkers. The overwhelmingly negative reaction of the rightwing leadership RushHannityBillNewt was fairly easy to predict – they have a clearly committed strategy of solidifying the ever-shrinking GOP base.
But the crazy attacks on Sotomayor will not only alienate Hispanics, they also alienates other minorities, women, young people. Pretty soon the GOP will be having their national meetings at the Cracker Barrel.
May 28th, 2009 at 11:32 am
Or maybe it’s because they don’t pander to paranoid white trash who spend all their time worrying about Spanish surnames.
Insecure people can be annoying like that.
May 28th, 2009 at 11:33 am
Great! Go with that!
Accusing Michelle Obama of being a racist worked out so brilliantly, I can only stand back and applaud as you use that same script against Sotomayor.
I hear there’s a tape of her railing against Gringos.
May 28th, 2009 at 11:37 am
The relevant political demographic in any case isn’t the GOPocrats, but the 39% (according to Pew) who are independents. As long as this continues, the GOPocrats will consist of 2 minority parties, both of which whore for the same campaign contributors while neither can command any lasting majority among voters.
May 28th, 2009 at 11:37 am
Re DTM “The problem is that they are in the 40% on all those issues. So focusing on specific legal issues would actually just help cement their minority status.”
————–
Not necessarily — it depends upon whether the 40 percent are passionate about the issue and whether the 60 percent are lukewarm.
And whether there is little overlap among your supporters on the different issues (draw a Venn Diagram.)
Extreme case: 40 percent of the people who agree with you on Issue A join your party just because of that one issue. Another separate 40 percent of the people agree with you on Issue B and join your party because Issue B is important to them, even though they mildly disagreed with you on Issue A.
That gives you 80 percent of the population.
May 28th, 2009 at 11:39 am
Matt, you’re missing the important distinction between getting voters to change their minds and reinforcing an existing predisposition. You saw this in the presidential election where, because polls showed Obama winning, all he had to do was look presidential in order to lock in those already inclined to vote for him.
May 28th, 2009 at 11:43 am
Obama is playing chess while the GOP is playing checkers.
It’s more like Obama is playing chess, GOP lawmakers are playing checkers, and conservative commentators are shoving pieces from both games up their noses.
May 28th, 2009 at 11:44 am
Extreme case: 40 percent of the people who agree with you on Issue A join your party just because of that one issue. Another separate 40 percent of the people agree with you on Issue B and join your party because Issue B is important to them, even though they mildly disagreed with you on Issue A.
That gives you 80 percent of the population.
Right, except that isn’t actually the case with the real issues in the real world. In the real world, all the various 40-percenters have a great deal overlap. Meanwhile, some of the 60-percenters have equally strong feelings on one or more of these issues, and the remainder of the 60-percenters, and indeed some of the 40-percenters, are getting the idea that the GOP is preoccupied with these issues and not the issues they actually care about.
May 28th, 2009 at 11:45 am
Spanish-surnamed elites like the Democrats because the Democrats like ethnic preferences for Spanish-surnamed elites.
Keep tell yourselves that and keep losing elections.
May 28th, 2009 at 11:45 am
Dana Milibank is a left winger?
Wow, that Overton window is seriously skewed …
Anyway, the reason why the GOP will be able to oppose Sotomayor on the terms they are opposing Sotomayor without loosing any more votes than they’ve already lost due to the coded racism of many GOP messages (even the anti-gay marriage arguments often seem lifted straight out of opposition to miscegenation) is that they will continue to keep the focus on Sotomayor (which makes sense, in a way — after all she’s the one who is nominated).
In order for the double standard to become clear, the Dems will need to ensure that similar statements by Alito, Scalia, et al., are in the public conscious as often as possible.
The problem is how to do that without having problems with “even liberals now like Scalia and Alito as they are arguing we should like their favorite, Sotomayor, ’cause she’s no different than they are” arguments being thrown back at us or being accused of trying to change the subject away from Sotomayor …
May 28th, 2009 at 11:48 am
Accusing Michelle Obama of being a racist worked out so brilliantly, I can only stand back and applaud as you use that same script against Sotomayor.
Michelle Obama was accused of being a racist? I must have missed that. Of course, Michelle Obama is not a candidate or nominee for anything, so that would be pretty irrelevant.
I do remember that the lowest point of the entire campaign for Obama was when he was closely associated with a real life racist, Jeremiah Wright. Obama actually tanked in the polls for a while, until the controversy went away. In that case, associating the candidate with racism was, in fact, politically helpful for his opponent (then Hillary Clinton).
May 28th, 2009 at 11:50 am
My real name is a fake name made to seem English. When my great grandparents came to the U.S. with Polish names in the late 19th century, they couldn’t find work with Polish surnames that were hard to pronounce. It wasn’t out of some care to assimilate or to make them seem more “American”. It was because they faced real discrimination, the kind that made it hard to find work, and they figured that if their kids grew up with English sounding names, they’d face a much easier time of it.
So instead of a name like Krzyzewski, I have a name like Johnson.
Fortunately, there’s much less discrimination today against Polish or Russians, and so recent immigrants don’t feel the need to change their names as the price of admission to the U.S.
But if Mark Krikorian had his way, apparently, we’d return to a world where people *could* *not* *get* *jobs* because of ethnic animus. That would not be an improvement.
May 28th, 2009 at 11:52 am
Obama aced this choice whatever happens during confirmation. Sotomayor has brought out for all to see and hear the wingnuttiest in the wingnuts. If somehow Republicans sink her elevation to SCOTUS even more damage will be done. If they allow her in there is still the stink of Limbaugh/Hannity/Beck/Gingrich/Coulter/Levin throughout the land. I’ll be curious to see how much of the current venom and spittle follows her to the court should she get there. Not much time is spent viciously trashing sitting justices. Maybe she’ll be the exception.
May 28th, 2009 at 11:52 am
The public doesn’t give a shit about SCOTUS. If they did, there’d be rioting at how fucked it is until the Federalists retire in 30-40 years.
The GOP can’t do anything to make Sotomayor controversial, because she’s a super-vanilla pick. She was originally appointed by GHW Bush, and she’s not that great on abortion, intellectual property, or executive authority.
It’d make my day if they sank her nomination: it would be nothing but racially motivated, and then we could get a solid left vote.
Then again, it’s still 5-4 crazy-corrupt. Anthony Kennedy needs cancer or something.
May 28th, 2009 at 11:52 am
Since Mrs. Sotomayor was chosen all i have heard about her is how she is hispanic and the political implications of this rather obvious fact.
I am not niave. I know politics plays a part in all of this.It always does. But I would actually like to find out what her beliefs are.What are her opinions on the first amendment, for instance ? Or the other amendments? What are her opinions on eminent domain?
I have read the newspapers and several blogs but i do not seem to be able to find these answers.It all seems to be about the political implications of her being hispanic.
I’m a political junkie just like everybody else on this blog.But could we have a little substance please.
May 28th, 2009 at 11:55 am
Re DTM at 34: “Right, except that isn’t actually the case with the real issues in the real world. In the real world, all the various 40-percenters have a great deal overlap.”
—————-
The electorate can be sliced and diced from many different ways. That is why politicians try to control the terms of discourse: to control the angle, so that voters focus on SOME issues and remain unconscious of conflicts on OTHER issues.
That’s why –when the union leaders are telling unions workers that “Democrats support us and Republicans are hostile” — the Republicans have their NRA supporters in there telling the blue collar union workers “Yeah, but they will take your guns away”. And Lou Dobbs saying “Yeah– and they’re letting low-paid foreign workers in to take your jobs”
May 28th, 2009 at 11:56 am
Now, now, no reason to bring clients into this just because you’re upset that ManU got demolished yesterday.
Oh, I’m not upset at all, since I went into it — as I said in the original thread — as a strict neutral. Barca have had tougher matches against the cones in the training ground. The paradox is that that you had four Premier League teams go so far against the rest of Europe, while the domestic season has been frankly mediocre.
(The “not Chelsea” rule kicks in on Saturday, of course, albeit with no particular love for Everton.)
May 28th, 2009 at 11:56 am
Obama is playing chess while the GOP is playing checkers.
Obama is playing four dimensional chess while the GOP is trying to find the button on the Busy Box that makes the horn go “toot.” It’s so cute how excited they get when they find it.
(h/t to a commenter on Balloon Juice)
May 28th, 2009 at 11:58 am
I still want to know how Mark Krikorian thinks “Boehner” should be pronounced.
May 28th, 2009 at 12:03 pm
The real oppressed of our society are the Scots-Irish.
May 28th, 2009 at 12:04 pm
My real name is a fake name made to seem English. When my great grandparents came to the U.S. with Polish names in the late 19th century, they couldn’t find work with Polish surnames that were hard to pronounce.
That’s usually the way: the typical “Ellis Island guy” story is almost always a myth, since the ships’ manifests had people’s names spelled correctly and the facilities had translators at hand. The name-changing came when immigrants settled and either faced anti-[nationality/ethnicity] prejudice or just found it easier to anglicize their names.
May 28th, 2009 at 12:06 pm
Michelle Obama was accused of being a racist? I must have missed that.
You’re kidding, right?
Pete, Spend a little less time lecturing us about what the “real” issues are and what’s “really” important in life and how your lack of a college education makes you the final arbiter of what “really” matters and a little more time looking and reading.
May 28th, 2009 at 12:09 pm
Michelle Obama was accused of being a racist? I must have missed that.
Yes, you must have missed the months of agitation by people like yourself about the imminent release of the “whitey” tape that would show how much she hated white people. Hell, I could probably find a post or two of yours mentioning it back then if I cared enough to look.
May 28th, 2009 at 12:17 pm
Re pete from Baltimore
Here’s some discussion of a number of her opinions from a web site with far fewer whackjob commentors then this one.
http://scienceblogs.com/dispatches/2009/05/judge_sotomayor_careful_not_ra.php
May 28th, 2009 at 12:19 pm
Remember during the Alito nomination the GOP minions kept trying to play the religion card – any criticism of Alito was reject as anti-Catholic bias. Funny how the Dems don’t play that particular game and everybody forgets about it until its time for the Repubs to nominate someone else and we start all over again
May 28th, 2009 at 12:22 pm
You’re kidding, right? Not proud of her country, hates white people, sullen, should be grateful for everything that’s been handed to her, attended the church of a racist, her thesis at Princeton, the Whitey Tape…look, Al, that was a really moronic thing for you to write. It either shows you to be so profoundly dishonest that nobody with any sense will bother to pay attention to anything you so, or so profoundly ignorant about current politics that nobody with any sense will pay attention to anything you say.
Neither was Hillary Clinton in 1992-1999, but that didn’t stop your sort from savaging her.
Wow, your memory of 2008 is really faulty. In fact, the Reverend Wright blow-up led to the Philadelphia “More Perfect Union” speech, which more or less clinched the nomination for Obama over Clinton and made him a widely-respected leader to the general public.
May 28th, 2009 at 12:24 pm
What’s hilarious is that the Republicans are wandering down this path but are too chickenshit and cowardly to be Competent Racists.
After all, how many people are going to get riled by the suggestion that Sotomayor might put her thumb on the scale –in some vague and undefined way –in some obscure Supreme Court case?
Nah, to make this racist approach get –and keep — the attention of easily bored voters, you gotta drop the vagueness and start throwing out Specifics. Say that Sotomayor will throw our Southern border open and let in the Mud People who will sneak into your house at night and screw your white children in their poopie holes.
Of course, the problem with the racist approach is that sooner or later some asshole in back snickers, the audience members look at each and start grinning and the crowd starts wandering off.
May 28th, 2009 at 12:26 pm
Pete, the wikipedia page is fairly informative.
To a layman, she seems to be mainly pro-privacy for the individual and pro-transparency for the State.
She’s broken ranks enough times to avoid partisanship, but is generally in line with the Democratic mainstream. Her history seems to be that of a liberal Anthony Kennedy.
Mind you, a liberal Kennedy isn’t what we need. But, since removing the Four Federalists is what we need, Sotomayor will do fine.
May 28th, 2009 at 12:27 pm
If only the topic of Reverend Wright had been screamed about 24/7 for a fourth time, then Real America woulda got up off the front porch and brought back the true equality principles of John McCain, Sarah Palin, and Zell Miller.
May 28th, 2009 at 12:28 pm
REGARDING MR ANTHONY’S COMMENT # 48
Mr Anthony
Actually i do not see in my comment where i mentioned my lack of college education .I have mentioned it on posts about education where it was relevant.
You obviously have a problem with me, because you seem to attack every comment of mine that you see.I am sorry that you are so angry ,but that is not something that i can help.You seemt to get angry at a lot of commenters here.
I also notice that when the post is about a “red meat” tpoic you eagerly join in and start trading insults with others.But when the post is about infrastructure or zoning you seem to be completly absent.
If you want to obsesse over Mrs . Sotomayor’s race Mr. Anthony that is fine.But some of us would actually like to find out about what she believes in.
Mr Anthony you seem to be an angry person.I’m short of work right now, and i still love my life.I hope that one day you can find other things to do than insult people on the internet.Then maybe you will like your life as well.
Best Regards to you MR ANTHONY
May 28th, 2009 at 12:32 pm
I also notice that when the post is about a “red meat” tpoic you eagerly join in and start trading insults with others.But when the post is about infrastructure or zoning you seem to be completly absent.
Case in point. What did I say about lectures on what’s “really” important?
And by the way, you usually go on about your salt-of-the-earth background, including education, not when it is relevant but when anyone refutes you.
May 28th, 2009 at 12:35 pm
Mr Luke and SLC
Thank you for the links. I will defintly read them after my bike ride.I should have thought of wikipedia myself.
Thank you for your comments, LUKE AND SLC.
Best regards to you both
May 28th, 2009 at 12:40 pm
Anthony, Pete’s point was valid and is one I’ve made several times already. It is ridiculous to criticize Republicans for focusing on Sotomayor as a Latina when that has been largely the focus of 6 threads here.
As I noted earlier, there has been little to no discussion of Sotomayor’s judicial views here — and of how she would likely rule on major issues like separation of powers.
May 28th, 2009 at 12:45 pm
But if that hadn’t happened, and if Bush had nominated a Hispanic Justice instead of Roberts or Alito, I think that could well have helped solidify the GOP’s gains among Hispanic voters.
For what it is worth, the feeling on the right at the time was the the Democratic opposition to Miguel Estrada’s judicial appointment was that they didn’t want him on the bench because then he would get bench experience that Bush would need in order to nominate him to the Supreme Court, and reap whatever benefits there were to reap from appointing the first Hispanic Justice. Since people actually pay attention to SC nominations and not so much to lower court nominations the Dems didn’t feel like they could reasonably oppose Estrada for the High Court wihtout a backlash, but they could refuse to give him an up/down vote for the Appeals Court. Again, this is just what I remember from discussion at the time, but it is worth thinking about. The Republicans don’tjust hate minority canidates, the Dems actively try to deny our minority canidates the experience the need to progess.
Of course with the tons of white male canidates that Dems also put holds on I am sure liberals will dispute this analysis.
May 28th, 2009 at 12:46 pm
REGARDING MR ANTHONY”S angry comment #57
If i have offended anyone on this blog other than Mr Anthony, than i apoligise.I certainly do not claim to be “salt of the earth”.
But when we are talking about urban enviroments or education i might have a different perspective than someone with a different background.When we talk about Estonia or The Netherlands it is always great to read a comment by someone who has actually been there.So if Mr Yglesias does a post on the high school dropout rate ,i try to write about it from my perspective.
I love to read about urban issues from the perspective of people from other cities.If any of you think that i have been too Baltimore centered than i apoligise.
I am the last person who would want to be seen as the spokesman for the white working class,or any other group for that matter.
The reason i read this blog is to learn, not to lecture.
Best regards to everybody on this blog
May 28th, 2009 at 12:46 pm
pete from baltimore,
SCOTUSblog is thoroughly reviewing Sotomayor’s decisions on an ongoing basis.
May 28th, 2009 at 12:48 pm
RepublicanSpeak
“Judicial Activist” = Upholding Title VII in the Ricci Case
“Color-blind” = Tacitly expecting minorities to somehow “prove” that they don’t hate white people. Assuming that all minorities “hate white people”
“Limited government” – except when you need the Federal Government to compel states to discrimminate on the basis of sexual orientation.
“Fiscal Responsibility” – Borrowing $2 Trillion from China to fight a war of choice in Iraq
“Defending our Freedoms” – Invading and occupying a country that had nothing to do with 9/11 and frankly was of no real threat
“Evil Dictator” – unless their name is Marcos, Shah, Somoza, Pinochet, King Faud, etc.
“Freedom of Religion” – except for all non-Christian religions
May 28th, 2009 at 12:50 pm
DTM
Thank you for telling me about the SCOTUSblog.I had never heard of it before.
May 28th, 2009 at 12:53 pm
1) For example, does anyone here dispute Sotomayor’s view that the Bill of Rights are binding ONLY upon the Federal Government — that they are NOT binding on the State Governments?
2) The liberal Ninth Circuit Court (California,etc.) ruled otherwise, by the way.
May 28th, 2009 at 12:56 pm
JD,
Interestingly, the exact same story has been told about the GOP’s attempt to obstruct Clinton’s appointment of Sotomayor to the Second Circuit–that they were afraid he was grooming her for the Supreme Court. This effort eventually failed, but they did keep her on anonymous hold for over a year. Here is a contemporaneous news account:
G.O.P., Its Eyes On High Court, Blocks a Judge
I’m actually fairly confident this story was true in both cases, meaning this was at least part of the calculation by the opposing party.
May 28th, 2009 at 12:58 pm
The Ninth Circuit kind of did a cowardly avoidance of the issue, which is if civil rights granted by a court decision can be revoked with a simple up or down vote. Imagine the fun we could have if all it takes is a simple majority vote to ascribe second class status on a person.
Of course, all the huffing and puffing by the Radical Right about the decision seems to ignore the fact that 18,000 gay marriages were allowed to stand. When enough time passes and the people of California find that these gay marriages hardly caused society to collapse, it will be harder for the Prop 8 crowd to argue “societal harm” the next time the issue comes up in court.
May 28th, 2009 at 12:59 pm
For example, does anyone here dispute Sotomayor’s view that the Bill of Rights are binding ONLY upon the Federal Government — that they are NOT binding on the State Governments?
Don, can you provide a link to this quote please. These seems like an odd view to me, as otherwise how could to Supreme Court hear state death penalty cases on 8th amendment grounds? Or have heard Miranda vs Arizona? It seems fairly obvious just from those quick off the top of my head examples that the Bill of Rights applies to the States. Like I said, I would appreciate a link.
May 28th, 2009 at 1:10 pm
For example, does anyone here dispute Sotomayor’s view that the Bill of Rights are binding ONLY upon the Federal Government — that they are NOT binding on the State Governments?
That isn’t Sotomayor’s view.
I assume you are talking about Maloney v. Cuomo, a Second Amendment case. By way of background, the Supreme Court has held that the incorporation of rights protected by the Bill of Rights in the 14th Amendment has to be evaluated on a right by right basis. In Presser v. Illinois, the Supreme Court held that the Second Amendment applies only to the federal government. That would ordinarily settle the issue, but the Supreme Court’s recent decision in District of Columbia v. Heller would seem to undermine the holding of Presser, given the Supreme Court’s general incorporation doctrine.
The problem is that the Circuit Courts are not free to overrule directly relevant Supreme Court precedents, even if they conclude that they were wrongly decided. The complex question is then whether or not Heller was sufficient to constitute an overruling of Presser. In Maloney, Sotomayor and the Second Circuit concluded it was not sufficiently on point to overrule Presser (because it was a D.C. case, it didn’t have to address incorporation).
The liberal Ninth Circuit Court (California,etc.) ruled otherwise, by the way.
True, but the Seventh Circuit recently heard a similar case and is quite likely to take the same position as the Second Circuit based on what happened at oral argument. And holding aside liberal/conservative, the Ninth Circuit is not the ideal circuit to be citing on the issue of respecting Supreme Court precedents.
Personally, I think the Second Circuit got this right. I agree Presser is almost surely wrongly decided in light of Heller, but the issue simply wasn’t raised in Heller. So, it is up to the Supreme Court to make the decision about whether and how to overrule Presser.
May 28th, 2009 at 1:17 pm
Al and the right wing in general always treat uncomfortable home truths as a rhetorical challenge. It’s like watching the flu virus mutate.
May 28th, 2009 at 1:17 pm
Re JD’s request: “Don, can you provide a link to this quote please.”
————–
Sure. The Supreme Court held in District of Columbia vs Heller that the Second Amendment gives Americans the individual right to possess arms.
Yet in Maloney v Cuomo, Sotomayor ruled that the Second Amendment only constrains the Federal government, NOT the State Government of New York. See http://en.wikipedia.org/wiki/Sonia_Sotomayor#Second_Amendment_rights
That even though the Second Amendment gives martial artist Maloney the right to possess a nunchuk, the State of New York can strip him of that right.
This same issue came before the Ninth Circuit Court (of California) as well. That Court — generally held to be the most liberal of the Appeals Courts in the USA — ruled in Nordyke v King that the Supreme Court’s decision in DIstrict vs Heller is binding on the State Governments as well. See
http://en.wikipedia.org/wiki/Nordyke_v._King.
IT has long been a foundation of CIVILS RIGHTS LAW that the Bill of Rights was made binding on State Governments by the Due Process clause of the Fourteenth Amendment. For Sotomayor to IGNORE that is very troubling.
Liberals might be comfortable with her allowing State Governments to throw out the right to own firearms.
How would they feel about her allowing State Governments to throw out freedom of speech, of press, of assembly and of habeas corpus and the right to a fair trial?
May 28th, 2009 at 1:19 pm
Interesting commentary about Sotomayor from an attorney who actually argued a case before her.
You’ll be stunned to discover that reality is actually diametrically opposed to the right-wing’s talking points.
May 28th, 2009 at 1:22 pm
Sorry — I had not seen DTM’s post 69 when I composed 71. People might compare Sotomayor’s reasoning in Maloney with the Ninth Circuit Court’s reasoning in Nordyke.
May 28th, 2009 at 1:23 pm
You’ll be stunned to discover that reality is actually diametrically opposed to the right-wing’s talking points.
Surprise fatigue.
May 28th, 2009 at 1:26 pm
The Heller case was a challenge to a Washington, D.C. law. The issue of incorporation of the 2nd Amendment to the states never came up, because the District of Columbia is not a state, but rather, a federally administered territory.
DTM did away with this inaccurate characterization already. The incorporation doctrine is applied on a state-by-state basis, and the 2nd Amendment has not been incorporated the way the First, for example, has been.
The statement that Sotomayor’s view that the Bill of Rights are binding ONLY upon the Federal Government — that they are NOT binding on the State Governments? is egregiously false. She has expressed no such view in any case she has ever ruled on.
May 28th, 2009 at 1:28 pm
Interesting commentary about Sotomayor from an attorney who actually argued a case before her.
Well, some of the anti-Sotomayor quote that have been used by the right were from lawyers who argued cases before her. They were from annonymous reviews but they were still from people who argued before her.
I am pretty sure any Judge who has been on the bench for a number of years as she has can easily find lawyers who love her and just as easily find some who hate her. Individual testimonials either for or against should be taken with a grain of salt at the least.
May 28th, 2009 at 1:31 pm
JD,
Did you read the link? The attorney who wrote that is discussing a case in which Sotomayor ruled AGAINST him.
Statements against interest carry special weight in judicial matters, I understand.
May 28th, 2009 at 1:32 pm
I realize many liberals are not sympathetic to the Second Amendment. But they should know that some of the top liberal authorities on Constitutional Law — Lawrence Tribe and Akhil Amar — think the Amendment — and issue –is an important one. Who protects Congress from a rogue President, if not the people of this country?
We do not want Brownshirts terrorizing people while unconstrained by law. But the first thing the Southern State Governments did after the end of Reconstruction was to disarm Afro-Americans. To make them vulnerable to intimidation and violence.
Dick Cheney might well have become President if something had happened to George Bush. Would we want the country totally disarmed if that had happened?
May 28th, 2009 at 1:37 pm
Re joe at 75: “The statement that Sotomayor’s view that the Bill of Rights are binding ONLY upon the Federal Government — that they are NOT binding on the State Governments? is egregiously false. She has expressed no such view in any case she has ever ruled on.”
———–
The Second Amendment is not part of the Bill of Rights? You get to pick and choose which rights are valid at some point in time?
Normally you would have to go to Germany circa 1935 to find that judicial approach.
May 28th, 2009 at 1:45 pm
Obama does think ahead. My guess is that there will be at least one unexpected scotus appointment in the next eight years (and I’m figuring Sarah Palin won’t beat him in 2012), and so I’m not so unhappy about aSotomayer’s vanillla-ness. The right’s puerile to sheethead attack will be another instance of the verbal inflation killing the right – when Obama is a “socialist”, then socialism becomes more and more acceptable. Hence, we might seen a very pleasing turn away from the reactionaries that are currently in majority in the Fed Court system.
So beautiful. It must be making the richest a little uneasy, watching their party slide into imbecility. However, they do have plenty of tools among the Democrats. But I’m figuring that it will be harder for Dems to play moderate, aka Republican, as the Republicans become the snakehandler party of a resurgent Confederacy.
May 28th, 2009 at 1:46 pm
JD,
Did you read the link? The attorney who wrote that is discussing a case in which Sotomayor ruled AGAINST him.
Statements against interest carry special weight in judicial matters, I understand.
She already ruled against him so its not like he really has a god in the fight anymore so I’m not sure how against interest it really is, but fair enough.
But in that case I hope you are prepared to wiegh the testimony of anyone who goes on the record against her very highly. Praising a Justice who you might have to try a case before again in the future is really not against interest in any way. Coming in agaist a Justice who, if you testimony is convincing, will not be put on the High Court and will instead stay where she is, where you might have future cases before her is very much against interest. In application, no one will want to hire the lawyer who helped tank Sotomayor for any case that might come before her, so anyone coming out against publicly is committing career suicide.
As long as we are discussing the issue of interest in conjuction with reviews of sitting judges and all.
May 28th, 2009 at 1:47 pm
its not like he really has a god in the fight
I mean a dog in the fight, obviously. Sorry
May 28th, 2009 at 1:48 pm
OK. What’s stopping you?
May 28th, 2009 at 1:48 pm
You didn’t say “The Second Amendment.” Your claim was that it was Sotomayor’s view that the Bill of Rights – not “the Second Amendment,” not “part of the Bill of Rights,” but “the Bill of Rights” are binding ONLY upon the Federal Government — that they are NOT binding on the State Governments.
Where does this blather about “valid” come from? Who claimed anything about the Second Amendment being, or not being, “valid?” You made a specific point, and now you’re weaseling away from it.
Your claim is false. Egregiously so, since you clearly knew it to be false when you made it. Shame on you.
May 28th, 2009 at 1:50 pm
JD,
Read.
The.
Link.
He does not praise her. He criticizes her.
May 28th, 2009 at 1:52 pm
The liberal Ninth Circuit Court, In Nordyke v King:
“We therefore conclude that the right to keep and bear
arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later.
The crucial role this deeply rooted right has played in our
birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.17 We are
therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and
applies it against the states and local governments.18 “
May 28th, 2009 at 1:57 pm
The Second Amendment is not part of the Bill of Rights? You get to pick and choose which rights are valid at some point in time?
No Don – that’s not the way it works. Before the 14th Amendment, the Bill of Rights only applied to Federal laws, not state laws (for example, some New England states retained official state religions well into the 1820s even though the Bill of Rights prohibited establishment of a state religion by the Federal government. After the 14th Amendment, when the Supreme Court decided that the Bill of Rights should be applied to state laws under due process and equal protection claims (Gitlow v NY (1925), the Supremes ruled that certain of the Bill of Rights, considered “essential to ordered liberty” such as guarantees of freedom of religion, speech, press, assembly, right to counsel, etc. were applied to states as well as the federal government, however, other “rights” in the Bill of Rights such right to trial by jury and the privilege against self-incrimination did not necessarily meet that test. And ever since, it’s been on considered on a one-by-one, right-by-right basis.
Not *all* of the Bill of Rights are automatically applied to state law – ignorant comaparisons to Nazi Germany notwithstanding.
May 28th, 2009 at 1:57 pm
Hmmmm … Sotomayor / Sodamayer … that Mark Corcoran guy might have a point.
May 28th, 2009 at 1:58 pm
Re Don Williams
One really has to be amused by the blogs resident Bolshevik. Apparently, he has the opinion having red neck mouth breathers toting around .44 Magnums can somehow prevent the US Army from taking over the country, if it had a mind to. Rots of ruck. I also find it amusing when persons of his ilk blandly ignore the language in the 2nd amendment that talks about well regulated militias.
May 28th, 2009 at 2:01 pm
Re Joe at 84: “Your claim was that it was Sotomayor’s view that the Bill of Rights – not “the Second Amendment,” not “part of the Bill of Rights,” but “the Bill of Rights” are binding ONLY upon the Federal Government”
————-
The Bill of Rights are a total WHOLE. You can not discard one without discarding ALL. To argue otherwise is like saying that a tripod will remain standing if you remove one of its legs.
Scrap the right to own arms –and the other rights will disappear shortly thereafter.
Scrap the right to free speech and free press — and the other rights will disappear shortly thereafter.
And what are either of those rights worth if protesters can be secretly imprisoned for a long period of time without charge or trial?
May 28th, 2009 at 2:01 pm
To a more accurate and honest question:
Does it bother you that Sotomayor has ruled that the 2nd Amendment has not been incorporated, via the 14th Amendment, to apply to the states as well as to the federal government?
To which I would answer, no, Sotomayor’s accurate statement about the existing state of 2nd Amendment law doesn’t bother me in the least – and this is coming from someone who believes that all of the Bill of Rights should be incorporated, and doesn’t quite understand how it came to be that only certain amendments, but not others, in the B.o.R. are applied to the states.
That’s the state of the law. It isn’t notable at all that she didn’t choose to break new legal ground as she joined in that ruling. The only thing I glean from that is that she doesn’t seem to be much of an envelope-pusher.
May 28th, 2009 at 2:02 pm
We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and
applies it against the states and local governments
And until the Supreme Court rules likewise, that determiniation by the 9th Circuit (I thought everyone was bitching about it being so librul) is only good in the Ninth Circuit
May 28th, 2009 at 2:07 pm
Re SLC at 89: “I also find it amusing when persons of his ilk blandly ignore the language in the 2nd amendment that talks about well regulated militias.”
———
The militia is regulated by Congress –but not deleted from existence. Like the Constitution, it abides.
But SLC is free to laugh as they load him onto the freight cars for the trip to the camps.
I hear they have a work release program there: http://en.wikipedia.org/wiki/File:Auschwitz_entrance.JPG
May 28th, 2009 at 2:08 pm
You are entitled to your opinion, but you are misstating the law.
In point of fact – not opinion, but fact – the 2nd Amendment has not been incorporated, the way the 1st has been.
I’m not even arguing that your opinion is wrong – I tend to come down on the side saying that it SHOULD BE incorporated, not because I buy into the hysterical scenarios put forward by the gun-toters, but just for the sake of logical consistency. There is nothing in the 14th Amendment, or in the B.o.R. itself, to suggest that some of the first ten amendments apply only to the feds and others to both the feds and states, so there should be one rule for all of them.
But that is not the state of the law. It is not Sotomayor’s “view” that the 2nd Amendment has not been incorporated. It is an indisputable fact that it has not been incorporated.
And it is still sleazy of you to use misleading language to foster a false impression about her beliefs about the Bill of Rights in toto.
May 28th, 2009 at 2:09 pm
You lose.
May 28th, 2009 at 2:19 pm
To repeat, the issue is not really whether the Ninth Circuit’s analysis is correct as a matter of first impression–in light of Heller, it almost certainly is.
The real issue is what is a Circuit Court empowered to do about the fact that the Supreme Court has already held that the Second Amendment only applies to the federal government. The Ninth Circuit’s reasoning is basically that those cases only foreclose certain arguments for incorporation, and that since a new argument for incorporation has arisen since then, the Ninth Circuit is entitled to disregard those precedents. Note, by the way, the Ninth Circuit is explicitly relying on the doctrine of “selective incorporation” under the Due Process clause of the 14th Amendment, so if Don doesn’t like the idea of selective incorporation, he shouldn’t be too fond of the Ninth Circuit’s reasoning.
Anyway, I really think the Ninth Circuit is wrong on this issue. New doctrines arise all the time and call prior holdings into question, but the Supreme Court does not always decide to overrule the prior holding. That is because they have a doctrine of stare decisis that can lead them to leave a ruling settled even when subsequent developments would cause them to reach a different conclusion if it was a matter of first impression.
So, the Ninth Circuit is implicitly taking it upon itself to make the stare decisis decision for the Supreme Court. And even if it is likely doing a good job of guessing how that decision would come out, it simply isn’t empowered to do so–that is for the Supreme Court alone to decide.
By the way, even if you don’t buy that, the Second Circuit panel in Maloney wasn’t free to come to another conclusion, because in a prior Second Circuit case, Bach v. Pataki, the Second Circuit had already held that Presser was still binding, noting:
So both Presser itself, and the Second Circuit’s own precedent in Bach, left the Maloney panel powerless to reconsider this issue. So that was that.
Of course with this circuit split developing, it is a good bet that the Supreme Court will revisit this issue sooner or later. They will then be free to overrule Presser if they so choose. And that is how it should be.
A final general note: I really think people have to be cautious about the casual way in which some interested parties treat circuit court decisions. Way too often, people imply that the judges on the circuit court panel must believe that their holding is the way the law should be, when in fact their holding was dictated to them by one or more binding precedents. Now the relevant judges may well agree with those precedents, or not, but the point is that you can’t just look at the holding and determine what the judges think would be the optimal result if they were free to do whatever they wanted.
May 28th, 2009 at 2:23 pm
The Bill of Rights are a total WHOLE. You can not discard one without discarding ALL. To argue otherwise is like saying that a tripod will remain standing if you remove one of its legs.
As joe from Lowell correctly pointed out, whether you personally believe this or not, the Supreme Court has held otherwise. And as a Circuit Court judge, Sotomayor had no power to contradict them.
May 28th, 2009 at 2:24 pm
The general view from people who know their shit is that Sotomayor is somewhat as you’d expect from someone with a decades of meat-and-potatoes (or rice-and-beans, if you like) federal court experience, as opposed to, say, Roberts, who spent two years on the DC Circuit before going back to private and government practice, or Scalia, who was fast-tracked after four years, again on the DC Circuit. Methodical, procedural, not a freelancer.
If you’re going to offer a criticism of Ricci, for instance, it’ll be that the panel was the opposite of “activist” in addressing Title VII disparate impact precedent.
May 28th, 2009 at 2:27 pm
Interesting commentary about Sotomayor from an attorney who actually argued a case before her.
Hey, Glenn Greenwald. Awesome. Rick Ellensburg and Thomas Ellers told me he was very smart and trustworthy.
May 28th, 2009 at 2:29 pm
Re joe at 94: “But that is not the state of the law. It is not Sotomayor’s “view” that the 2nd Amendment has not been incorporated. It is an indisputable fact that it has not been incorporated.”
—————
The state of the law , as the Ninth Court discussed, is that the Due Process Clause of the 14th Amendment bars the States from depriving a US citizen of fundamental rights that are “necessary to an Anglo-American regime of ordered liberty”.
The liberal Ninth Court had the intelligence and integrity to look at Heller and ask: Is the enumerated right to possess arms such a right?
In contrast, it did NOT even occur to Sotomayor to ask the question.
Good luck with those warrentless wiretaps. And GITMO.
May 28th, 2009 at 2:29 pm
Guys, in case you haven’t noticed, Don Williams is nothing but a concern-troll, and a surprisingly persistent one, at that. I know his first posts on any given topic make him seem like a “reasonable moderate,” but as he responds, his true wing-nuttiness always comes to the fore.
While I know that bashing trolls can be fun for a while, it really does tend to coarsen the discourse on a given topic, so I think we’d all be best advised to remember and heed the old ‘net adage: “Don’t feed the Trolls!”
End of PSA
May 28th, 2009 at 2:32 pm
Al,
Read the link. Greenwald isn’t exactly complimentary.
May 28th, 2009 at 2:32 pm
Sahu,
And eventually he gets around to bringing up the pernicious influence of the JOOOOOOOOOS.
He sucks.
May 28th, 2009 at 2:35 pm
In contrast, it did NOT even occur to Sotomayor to ask the question.
Again, this is simply wrong. The Second Circuit merely held that they were not free to reconsider this issue in light of directly controlling Supreme Court precedent.
I honestly don’t know why Don has so much trouble seeing this. Regardless of whether the Ninth Circuit was right on the merits, they weren’t empowered to ignore the Supreme Court’s holdings on the subject. Only the Supreme Court has the power to overrule itself.
May 28th, 2009 at 2:36 pm
I’m Chicano and, for the life of me, I can’t figure out why so many Hispanics vote Republican. Maybe the religous overtones or position on abortion or something, I don’t know.
I just don’t get it. It’s like, “let me side with the type of people that call us ‘wetbacks’ and such and like to stand at the border with loaded rifles. Yeah, that sounds just great.” Some Democrats may, at times, want to use us or cheat us but they generally don’t want to enslave us or shoot us. Some things I’ll never get.
May 28th, 2009 at 2:36 pm
Don’s not a troll, he is a crank. Cranks can be equally annoying and equally adept at taking a conversation off course, but we might as well be precise.
May 28th, 2009 at 2:41 pm
I think roger’s right to suggest that over-reaction to Sotomayor now will bite the GOP on the rear when another vacancy arises. In fact, the GOP knows that too, but it has to keep the base happy, fill the wingnut welfare coffers, etc.
Obama may have learned something about the politics of this from the Roberts and Alito confirmations (and the intervening Miers debacle) in terms of which order to nominate his preferred choices. Or perhaps he wanted someone Souter-ish to replace Souter. Or perhaps he just likes methodical, unflashy jurists.
May 28th, 2009 at 2:42 pm
Don Williams,
On the contrary, it certainly did occur to her. As DTM describes:
I’ve got nothing against the 9th Circuit’s ruling – they weren’t so-bound by their case law, the way the 2nd Circuit panel was.
Of course, because the relationship between the Incorporation of the 2nd Amendment and the legality of warrantless wiretaps is so direct.
There isn’t going to be a GITMO by the time Sotomayor signs an opinion as a Supreme Court Justice.
May 28th, 2009 at 2:46 pm
Hey , Anthony, why don’t you go back to telling Pete that his complaint re the substance-free discussion of Sotomayor shows that he is an uneducated hick.
I like Pete. Lack of Education can always be fixed — and we are all ignorant outside of our narrow areas.
But nothing can fix the mind of someone who is an unthinking advocate for “his team”. That’s a Fox News intellect. Somewhere on the order of a lab rat who can figure out which button to press for a treat.
Pete is honest enough to realize his limitations. You, hilariously enough, are not.
May 28th, 2009 at 2:47 pm
DTM,
You keep writing this, but how else is the Supreme Court going to consider the novel argument from Heller as it applies to Incorporation unless a Circuit court issues a ruling? There is no Supreme Court ruling on this particular question that compels the 9th Circuit to rule a certain way, and they now have the Heller decision itself to provide guidance on what sort of a right the 2nd Amendment protects.
May 28th, 2009 at 2:53 pm
Hey , Anthony, why don’t you go back to telling Pete that his complaint re the substance-free discussion of Sotomayor shows that he is an uneducated hick.
Actually, I said I was annoyed that whenever he is called on something, he says his words were “twisted” and launches into a self-righteous speech about how he’s a regular joe and there should be a place on the internet for people with his lack of education. Then he decides what the important issues are and chastises people for caring more about other issues than those that “really matter”. Then he lectures people about what is important in life.
I hardly called him an uneducated hick; it’s rather that I wish he could debate without fetishizing his lack of education.
May 28th, 2009 at 3:04 pm
Re DTM at 104: “Regardless of whether the Ninth Circuit was right on the merits, they weren’t empowered to ignore the Supreme Court’s holdings on the subject. Only the Supreme Court has the power to overrule itself.”
———–
Ah, the George W “This is HARD!” defense.
The Supreme Court is the LAST institution to go out across the land remedying injustice and fixing its past fuckups.
Justice should be timely — if a Circuit Judge thinks the Supreme Court had its head up its ass 120 years ago, I see not reason why it should not say so in order to give a just decision to a defendent in a current case. Let the current Supreme Court overrule it , if it is wrong.
Besides, the Controlling case was Duncan, NOT Presser. Especially after Heller. See http://en.wikipedia.org/wiki/Duncan_v._Louisiana
May 28th, 2009 at 3:09 pm
[...] off a point by Matt Yglesias (who notes that the opposition to Sotomayor has been almost cartoonishly racist), Ta-Nehisi Coates [...]
May 28th, 2009 at 3:11 pm
Re Anthony at 111: “I hardly called him an uneducated hick; it’s rather that I wish he could debate without fetishizing his lack of education. ”
———-
Hmmm. I thought otherwise but went back and reread your post at 48. You are correct. I apologize.
I do agree with Pete that we should be more critical in our evaluation of Sotomayor. I am not necessarily opposed to her — I just think there should be more public discussion of where she has stood on major issues.
May 28th, 2009 at 3:47 pm
You keep writing this, but how else is the Supreme Court going to consider the novel argument from Heller as it applies to Incorporation unless a Circuit court issues a ruling?
They certainly need a ruling, but it can be a single adverse ruling. They don’t need a circuit split to grant cert if they feel like overruling one of their prior holdings.
Ah, the George W “This is HARD!” defense.
No, this is the “that would be unconstitutional” defense, which is hardly associated with George W. Bush.
Justice should be timely — if a Circuit Judge thinks the Supreme Court had its head up its ass 120 years ago, I see not reason why it should not say so in order to give a just decision to a defendent in a current case. Let the current Supreme Court overrule it , if it is wrong.
That would be unconstitutional. Article III explicitly states:
An inferior court can’t tell the supreme court to go screw itself just because it doesn’t like what the supreme court said.
Besides, the Controlling case was Duncan, NOT Presser. Especially after Heller.
Wrong. Presser controls over Duncan because Presser directly held that the Second Amendment only applies to the federal government, whereas Duncan was a Sixth Amendment case. Heller, again, doesn’t change that, because Heller was a D.C. case.
Again, inferior courts don’t have the power to ignore the supreme court just because they think a directly controlling case would be decided differently. That is a decision only the Supreme Court has the power to make.
And for that matter, the Supreme Court has said as much. In R. de Quijas v. Shearson/Am. Exp., the Supreme Court held:
In Agostini v. Felton, the Supreme Court held this meant a lower court could not “conclude our more recent cases have, by implication, overruled an earlier precedent.”
So, Presser controls, and Article III plus R. de Quijas mandate that a circuit court has to follow Presser. And that should be that.
May 28th, 2009 at 4:30 pm
Re DTM at 115: “Wrong. Presser controls over Duncan because Presser directly held that the Second Amendment only applies to the federal government, whereas Duncan was a Sixth Amendment case. Heller, again, doesn’t change that, because Heller was a D.C. case.”
—————
Wrong. Heller made the Second Amendment a fundamental right. Duncan controls selective incorporation of such rights.
More broadly, I fail to understand why liberals are defending the decisions of the late nineteenth century Supreme Court 130 years later. Both Presser and Slaughterhouse are a crock of shit. Made at a time when the Supreme Court –like the other two branches of government — was an abject whore for
the Robber Barons.
Duncan would never have came into existence in 1888 –back then the Supreme Court would have thought it was Ok for the State of Louisiana to send a black youth to prison for two years without benefit of trial.
Hell, that great jurist from Sotomayor’s Second Circuit –
Justice Harlan (the II) saw nothing wrong with it in 1966.
http://en.wikipedia.org/wiki/Duncan_v._Louisiana#Other_Opinions
May 28th, 2009 at 4:31 pm
regarding MR Anthony’ s comment #111
Mr Anthony
Just as this thread started to get interesting and people started to talk of specific constitutional issues you have to come and bring me into the debate.If you hate me thats fine.But people here are trying to have a debate.Please spare us your personal insults.
No one else on this blog has ever had to insult me, besides yourself.I have many faults.But i do not think rudeness is one of them.
I can not understand your obsession with me Mr Anthony.You even got mad when i mentioned that it was Memorial Day on monday.
What an angry man you are.The only person who keeps mentioning my education is you.I have many friends with phds. And many who are high school dropouts.You on the other hand can not seem to get along with anybody.
I have no problem with someone disagreeing with me.I usally thank them for it. But to insult someone is juvinile. And to obsese over me is kind of creepy.
Let’s discuss substance instead of hurling insults Mr Anthony.
For those who have brought up important issues in this thread, thank you .I have learned a lot today from many of you.
Thanks again to LUKE and SLC and DTM for the links
May 28th, 2009 at 4:40 pm
PS Re DTM’s comment “So, Presser controls, and Article III plus R. de Quijas mandate that a circuit court has to follow Presser. And that should be that.”
————
Obviously the Liberal Ninth Circuit Court of Appeals disagreed.
May 28th, 2009 at 4:46 pm
Pete,
Don brought you up, and I mentioned you to clarify what I’d said, as he had mischaracterized it. He went back and looked and realized that he’d gotten my point about you wrong.
I responded to your reminder that it was memorial day because you repeated the lie that the only reason we can debate is because of soldiers defending our freedom, and suggested that soldiers who fight in American wars are, by definition, “defending our freedom”. I consider these very damaging and dangerous myths that are spouted unthinkingly by many Americans, and assuming that anytime a President orders soldiers overseas they are “defending our freedoms”—as if Americans are immune from launching aggressive, immoral wars or committing atrocities—really poisons the discourse and takes dissent off the table.
So yes, if you post that treacly sanctimonious bullshit about soldiers and Memorial Day, I’ll speak up and label it the bullying tactic it is. It is at best lazy to state that soldiers who died in wars “defended our freedoms” since that is almost always NOT why they were sent into war. Memorial Day should bring you face to face with the tragic reality that soldiers are sent to die because of the paranoid ideology of cocooned assholes like Nixon, Reagan and Bush. We remember the tragedy that so many died for nothing, and insisting that they died “defending our freedom” really produces an obnoxious and distorted view of America that rightly gets on people’s nerves all over the world.
May 28th, 2009 at 4:50 pm
Wrong. Heller made the Second Amendment a fundamental right. Duncan controls selective incorporation of such rights.
I repeat:
Claiming a line of cases about different Amendments controls over a directly applicable Second Amendment case is barred by the Supreme Court.
More broadly, I fail to understand why liberals are defending the decisions of the late nineteenth century Supreme Court 130 years later.
It couldn’t be more obvious from this statement that you simply don’t understand the issue. I agree Presser was wrongly decided. I think a lot of Supreme Court cases have been wrongly decided. But the only court which has the authority to make that determination is the Supreme Court itself.
Obviously the Liberal Ninth Circuit Court of Appeals disagreed.
Yes, and obviously the Ninth Circuit is well known for faithfully following Supreme Court precedents.
May 28th, 2009 at 4:52 pm
And before you say that I twisted your words, you stated that soldiers defending our freedoms in the *only* reason we are free to debate etc.
That is just not true.
It is also not true that all or most of those who have died in American wars—especially recently—died to defend our freedoms or for any noble cause. To me, Memorial Day is about reflecting on the horror and tragedy of so many who have died for bad causes, not to “defend our freedoms.”
So yes, repeating those lies really bothers me
May 28th, 2009 at 5:01 pm
But to insult someone is juvinile
Try to remember that the next time you get the urge by responding to someone’s critique of your points by asking if they ever leave the house and then lecturing them on how commenting on blogs isn’t everything in life (and then throwing in that you were out building houses in your community and what people there care about is what “really” matters), or before responding to a critique by accusing the other person of just wanting to show that he is smarter than others.
You’re hardly immune to hurling insults, my friend. All the very best to you MR PETE.
May 28th, 2009 at 5:02 pm
urge by responding = urge to respond.
May 28th, 2009 at 5:03 pm
Re DTM at 120: “Yes, and obviously the Ninth Circuit is well known for faithfully following Supreme Court precedents.”
———–
“It’s not really a Rule. More like a guideline”
—Captain Barbarossa, Pirates of the Caribbean
May 28th, 2009 at 6:39 pm
“That’s damaging. But that’s not really about Obama picking Sotomayor, it’s about the crazies on the right coming out to play.”
Unless, of course, you come to see that one of the reasons Obama may have chosen Sotomayor is precisely to put the GOP in this kind of lose/lose situation. Obama seems particularly adept at this kind of political ju-jitsu, using the other guy’s energy and momementum to destroy him, while using minimal effort of one’s own, other than careful positioning. Obama was able to defeat Hillary by this means, and ended up capturing the Latino vote in the general election that many predicted he had lost to her and would not regain. This helps cement that bond to the Latino community, but even more important, it takes advantage of the GOP commitment to sabotaging whoever Obama picked for this appointment, by nominating someone who, in being attacked by the GOP, would hurt the GOP much worse than it would hurt Obama, the Dems, or his appointment. Obama knew these kinds of attacks would come, so he picked Sotomayor in order to gain maximal ju-jitsu from the coming attack, which he could turn into an advantage for him and the dems all around. I’d say that’s pretty smart.
May 28th, 2009 at 8:50 pm
Don Williams,
That’s because, as a conservative, you believe that judges are supposed to rule in order to get the outcome they want, regardless of previous case law.
DTM and I, as believers in the rule of law, disagree, and believe that courts are rightfully constrained by certain procedural rules; and that among these is a duty to follow established precedent handed down by a higher court.
It’s incredibly telling about your relationship to the concept of the rule of law that you cannot imagine why someone would treat standing case law that has never been overruled as something lower-court judges are bound to follow, even if their politics suggest they would have wanted the SCOTUS to rule the other way.
DTM,
Heller, which ruled specifically on whether the right to bear arms was a fundamental individual right (the question used to determine incorporation), is a precedent of the Supreme Court with a direct application in this case – a more direct application than other gun rights cases.
Now, you can disagree with that reasoning, but the question of which set of cases has “direct application” to a specific issue before the 9th Circuit Court, and which set is “another line of decisions,” is a call for the 9th Circuit to make.
May 28th, 2009 at 9:14 pm
RE Joe at 126: “DTM and I, as believers in the rule of law, disagree, and believe that courts are rightfully constrained by certain procedural rules; and that among these is a duty to follow established precedent handed down by a higher court.”
———–
You mean like the Supreme Court’s decision in the Civil Rights Cases of 1883?
UPHELD as recently as 2000 to rule that Congress did NOT have the authority to pass the Violence Against Women Act?
See http://en.wikipedia.org/wiki/Civil_Rights_Cases
Yeah, that’s Progressive.
FUCK the Supreme Court. They are a bunch of old men adept at protecting their sinecures with two-faced sophistry. Like bishops in the Middle Ages, they have usually been more prone to suck the cocks of rich men than to protect the rights of the common citizens.
People knew slavery was wrong in 1776 –yet the Court protected it for 75 years and protected racism for another 100 years after that.
As a practical matter, we have to accept their rulings until we can either pass a Constitutional Amendment or impeach the motherfuckers. But the idea that the Court has any moral authority is a crock of shit.
Even it’s role in ruling on Constitutional matters is a con crafted by John Marshall back circa 1800 to fight off the democratic policies of Thomas Jefferson.
May 28th, 2009 at 10:03 pm
If Republicans would just reach out to minorities, they could capture 45-50% of the Hispanic vote, 20-25% of the black vote and remain comfortably in power.
But they can’t. They are completely incapable of doing this because of a decision Richard Nixon made over 40 years ago. He decided to appeal to white bigots who were angry over the Democrats’ suddenly supporting Civil Rights. The “NAACP Nixon” from 1960 was the man who used the “Southern Strategy” in 1968.
What is left of the Republican Party is no longer the “party of Lincoln” or even the “Reagan coalition.” It is, at its core, angry, white bigots. The Republican leadership knows it, but there is absolutely nothing they can do about it–the bigots and know-nothings control the party. Steele is powerless to change it as head of the RNC, as was McCain as the nominee.
Nixon’s actual record on Civil Rights was better than any President before him, even LBJ. But he sold his soul to the devil to win the election. And 41 years after the Republicans chose to lie down with dogs, they have woken up with fleas.
Latinos are not natural Democrats. They are natural independents. But the Republicans are determined to run them out of their party and into the arms of the Democrats.
May 28th, 2009 at 11:55 pm
Heller, which ruled specifically on whether the right to bear arms was a fundamental individual right (the question used to determine incorporation), is a precedent of the Supreme Court with a direct application in this case – a more direct application than other gun rights cases.
But the one part of the Heller opinion that deals with incorporation, footnote 23, reads as follows:
23 With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required byour later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
That is to say, the Court suggested that its previous jurisprudence on the Second Amendment and the incorporation doctrine was questionable in light of subsequent decisions, and then went out of its way to reiterate that the state of the law nevertheless remained that the Second Amendment applied only to the Federal Government. It seems to me that this footnote makes the 2nd Circuit’s position stronger and the 9th Circuit’s weaker.
May 29th, 2009 at 1:14 am
Re Herschel’s comment “It seems to me that this footnote makes the 2nd Circuit’s position stronger and the 9th Circuit’s weaker.”
——————–
Except that the Supreme Court forced the Ninth Circuit’s conclusion — and the Supreme Court’s own future conclusions — with it’s decision in Heller.
Look, there is a specific mechanism in the Constitution involving the Second Amendment which requires consistency: The Fact that the Congress controls WHO has command of the Militia (defined as all males of military age plus female members of the National Guard).
If the Nation is threatened by invasion from a Foreign enemy — or by an illegal insurrection — the Congress gives command of the Militia to the President. Who then deals with either of the two threats.
If ,on the other hand, the Threat is a President who is attempting a coup d’etat — disregarding a Congressional impeachment and dismissal, for example — then Congress leaves command of the Militia to the State Governors.
It can flee to those Governors for protection and — as Madison pointed out in the Federalist — no country has ever managed to support more than 2 percent of its population as a Standing Army in the long term.
Which means the Militia will always be able to defeat a Presidential coup. (Especially since the Constitution also bans each Congress from appropriating resources to support the Standing Army beyond that COngress’s term of office. The 109th Congress , for example, can not give the US Army a huge endowment that would make the Army independent of funding controlled by succeeding 110th and 111th Congresses.)
The Constitution is also very Clear that the States have limited say in management of the Militia (they appoint its officers). Given the prime importance of the Militia — and given that the Constitution explicitly bans the States from having armed forces of their own — it is ridiculous to argue that STATEs can destroy the federal Militia within their borders by passing gun control laws. And that Congress is helpless to prevent this.
May 29th, 2009 at 5:47 pm
And anyone should take your opinion about who best to appoint to the Supreme Court seriously, after this little outburst, WHY exactly?