Yahoo News: Obama to nominate Sotomayor for SCOTUS

[NavyDave]

Wah. Are you suggesting that they should be openly bigoted like you, right?

There is not a bigoted bone in my body.

When it comes to liberal extremists, anarchists, socialists, commies, fascists, eco terrorists, pot and crack heads, agnostics, tree huggers, slackers, wealth redistributors, anti capitalists, anti family activists, race card throwers, global warming charlatans, white collar criminals and Colt Brennan fans I equally view them all as a threat to the American way of life.

[TimmySmith]

The GOP is screwed. Hispanics are the fastest growing population in the US. Do they dare oppose Sotomayor and risk alienating this group any more?

I think this is a bit rash. The GOP or the Dems are never going to be completely happy with an opponent's choice. Their job is to give them enough opposition to make their constituents happy. Derailing the nomination is only a good thing if it is deserved, and generally has only happened to radicals who weren't vetted properly in the first place. Plus, the opposing party can always claim victory if they can expose the candidate as overtly moderate.

[Popeman38]

Does that mean states can arrest reporters, conduct illegal searches and seizures and make people go to church too?

If you are looking for an answer that is consistent, yes. If you are looking for a real answer, no. Everybody knows the 1st Amendment is untouchable. I would venture to say that 50% of the active ES members would be fine if the 2nd was completely nullified and no gun rights existed.

[Predicto]

Looking at her decisions in cases that have been overturned/upheld should give us a decent reading of her abilities.

You also need to look at the dozens, maybe hundreds, of decisions she has issued where the party who lost sought review in the Supreme Court, and review was denied, presumably because the Supremes had no big problem with the decision.

The overturned/upheld standard is pretty hard to apply fairly, because it is inherent in the discretionary review process that mostly only controversial cases that could go either way end up in the Supreme Court.

[Predicto]

If you are looking for an answer that is consistent, yes. If you are looking for a real answer, no. Everybody knows the 1st Amendment is untouchable. I would venture to say that 50% of the active ES members would be fine if the 2nd was completely nullified and no gun rights existed.

Really? I don't think you could name 2 people who think that, much less 50% of active ES members.

[twa]

Predicto,doesn't it make more sense to focus on the cases where there is controversy,rather than settled law(if she bucked settled law much she would not be a nominee..or I would hope not:))

Helps determine reasoning

[Predicto]

There is one battle looming with her nomination: the 2nd Amendment.

"Relying on the Supreme Court’s 1886 decision in Presser v. Illinois, it explained that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms. The Supreme Court’s recent decision in District of Columbia v. Heller, the court continued, “does not invalidate this longstanding principle.” And while acknowledging the possibility that “Heller might be read to question the continuing validity of this principle,” the panel deemed itself bound to follow Presser because it “directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.”

This is the exact opposite of a judicial activist. She deemed herself bound by prior Supreme Court authority that directly controlled the issue. While recognizing that the Supremes might soon be changing that authority, she was not willing to jump the gun.

At least on this case, this is exactly the kind of judge conservatives say they want. She is following the law, not making it.

[Tulane Skins Fan]

This is the exact opposite of a judicial activist. She deemed herself bound by prior Supreme Court authority that directly controlled the issue. While recognizing that the Supremes might soon be changing that authority, she was not willing to jump the gun.

At least on this case, this is exactly the kind of judge conservatives say they want. She is following the law, not making it.

C'mon Predicto, everyone loves strict construction when it produces the result they believe is right, and they want activism when THAT produces the result they want.

[Popeman38]

Really? I don't think you could name 2 people who think that, much less 50% of active ES members.

Have you ever stuck your head in a 2nd Amendment thread? It is vicious.

[Tulane Skins Fan]

Have you ever stuck your head in a 2nd Amendment thread? It is vicious.

You think the 2nd Amendment threads show that 50% of ES members would be ok if there were no gun rights whatsoever? That numbers has to be more like 1% based on those threads.

[Popeman38]

This is the exact opposite of a judicial activist. She deemed herself bound by prior Supreme Court authority that directly controlled the issue. While recognizing that the Supremes might soon be changing that authority, she was not willing to jump the gun.

At least on this case, this is exactly the kind of judge conservatives say they want. She is following the law, not making it.

And nowhere in this thread will you see the words judicial activist in my posts (other than quoting you, that is). I simply pointed out, from the SCOTUS blog, where the Reps will most likely make their stand. It is already on Fox, and it will be beaten like a rented mule.

[Popeman38]

You think the 2nd Amendment threads show that 50% of ES members would be ok if there were no gun rights whatsoever? That numbers has to be more like 1% based on those threads.

Damn. Is everything taken literally? There is zero chance we could get 50% of ES to agree on anything!

[Predicto]

Predicto,doesn't it make more sense to focus on the cases where there is controversy,rather than settled law(if she bucked settled law much she would not be a nominee..or I would hope not:))

Helps determine reasoning

But it can be misleading.

A lot of the time appellate justices issue decisions in controversial cases, and the Supreme Court still does not take the case because they feel that the controversy has been resolved in an appropriate manner.

The more telling question is how often she gets review granted combined with how often she is overturned.

Lets consider this: a judge is on the bench 20 years. Supreme Court takes only one case written by that judge in 20 years, and overturns it. So, you could say that the judge "has been overturned in every single case ever brought to the Supreme Court, 100 percent, raaarr."

Some other judge has been on the bench only 5 years, but the Supreme Court has taken 30 cases written by this guy and overturned 20 of them in scathing opinions.

Which one is the real problem judge? The one with the .000 batting average before the SC, or the one with the .333 batting average? That's all I'm saying.

(By the way, I have no idea where Sotomeyer fits on this scale, but I'm sure lots of people are checking right now).

[Tulane Skins Fan]

Damn. Is everything taken literally? There is zero chance we could get 50% of ES to agree on anything!

I literally take everything literally, literally.

[DjTj]

Does that mean states can arrest reporters, conduct illegal searches and seizures and make people go to church too?

No, because the Supreme Court has incorporated most of the First and Fourth Amendments against the states under the Fourteenth Amendment. The Supreme Court has not yet done so for the Second Amendment, although I personally don't see a reason not to.

The excerpt from Maloney simply highlights this distinction. In her position as a Circuit Court Judge, she couldn't apply the Second Amendment against a state until the Supreme Court had done it first. The five conservatives on the Court will probably make that happen within the next year or so, so the question will likely be moot anyways.

She looks perfectly qualified to me as well.

I don't like the statement she made about her race and whatnot. I tend to recoil from overt race-consciousness, especially in judges.

This is a curious sentiment. Clarence Thomas is actually pretty overt about his race as well, and actually most successful minorities of that generation tend to be. These people have been "the first..." all throughout their lives, and I don't think they had much choice other than to be race-conscious. Justice O'Connor was certainly very overt about her gender.

Even "white" members of the Court, like Scalia and Alito, are pretty proud of their own heritages. I think some level of race-consciousness is a very healthy thing. Being grounded in a particular culture can be an important foundation for success. It shouldn't be something to run away from.

[Predicto]

Have you ever stuck your head in a 2nd Amendment thread? It is vicious.

Sure have. But no one ever seems to advocate for zero gun rights. The fight usually splits between "some restrictions/registration" and "zero restrictions/no registration."

[TheLongshot]

I honestly was expecting more of a liberal firebrand as Obama's choice.

Given what I've seen from Obama since he's taken the job, I wasn't. Sotomayer seems to be in line with a lot of what Obama has done so far.

[deejaydana]

At the top of the home page they have about half a dozen articles (from various viewpoints) about the nomination. FYI

http://www.realclearpolitics.com/

[Burgold]

Damn. Is everything taken literally? There is zero chance we could get 50% of ES to agree on anything!

We couldn't get 50% of ES to agree that the Dallas Cowboys suck?!

That Philly fans are rude?!

That '91 was a great ride for the Redskins?!

That Darrell Green was a great cornerback and one of the fastest in NFL history?

That Art Monk waited too long for his HOF induction and that many candidates with lesser qualifications got in before him?!

Conservatives (that must be the fifty percent you are talking about) make lousy and unknowldegeable Redskin fans.

[deejaydana]

This is a curious sentiment. Clarence Thomas is actually pretty overt about his race as well, and actually most successful minorities of that generation tend to be. These people have been "the first..." all throughout their lives, and I don't think they had much choice other than to be race-conscious. Justice O'Connor was certainly very overt about her gender.

Even "white" members of the Court, like Scalia and Alito, are pretty proud of their own heritages. I think some level of race-consciousness is a very healthy thing. Being grounded in a particular culture can be an important foundation for success. It shouldn't be something to run away from.

Yes but even Obama said we now need to move beyond race. I couldn't agree more with that sentiment. We've beaten it to death in my opinion. Does race need to be accounted for ? Of course, but to make it central theme is just well, we need to get past it (despite what Holder said a couple months back that we're a nation of cowards on the topic).

[JMS]

Sure have. But no one ever seems to advocate for zero gun rights. The fight usually splits between "some restrictions/registration" and "zero restrictions/no registration."

Oddly enough the Erp brothers had a zero tollerance for guns in dodge city 1876.... Leftist pinkos that they were.

[Popeman38]

We couldn't get 50% of ES to agree that the Dallas Cowboys suck?!

That Philly fans are rude?!

That '91 was a great ride for the Redskins?!

That Darrell Green was a great cornerback and one of the fastest in NFL history?

That Art Monk waited too long for his HOF induction and that many candidates with lesser qualifications got in before him?!

Conservatives (that must be the fifty percent you are talking about) make lousy and unknowldegeable Redskin fans.

See, bait and switch here. This is the tailgate. We speak of no such things here.

[GibbsFactor]

C'mon Predicto, everyone loves strict construction when it produces the result they believe is right, and they want activism when THAT produces the result they want.

I'm all for strict constructionists no matter which way they lean. Understanding the limits placed on the Government is key.

[karmacop]

Conservatives should LOVE her decision regarding the Second Amendment, as Predicto has noted, since it demonstrates that she felt herself bound to the decisions made by the Supreme Court until explicitly overruled.

Here's the Wikipedia entry on Incorporation, which is what that decision was concerned with:

http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

The Bill of Rights has slowly been "incorporated" into the Fourteenth Amendment and thereby applied to the states, but on a slow and ad hoc basis. To date, the Supreme Court has not yet declared that the Second Amendment is specifically binding on the states, although it is likely:

This provision has been incorporated against the states within the jurisdiction of the Court of Appeals for the Ninth Circuit, and has not been held to be incorporated against the states elsewhere.

Since the modern Fourteenth Amendment analysis for incorporation was adopted, the U.S. Supreme Court has never heard a case for incorporation of this provision against the states. However, three cases that predate the Supreme Court's modern incorporation criteria [Miller v. Texas, 153 U.S. 535 (1894); Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542 (1875)] have held the contrary.[15] The court has ruled that the second amendment codifies a pre-existing individual right to possess and carry firearms, which is not in any manner dependent on the Constitution for its existence,[16] and some commentators suggest that incorporation is likely,[17] or that incorporation can hardly be escaped if the inferior courts take the Supreme Court's incorporation jurisprudence seriously as law—as they are required to do.[18]

Regarding the Second Amendment and the incorporation doctrine, the Supreme Court in District of Columbia v. Heller said (in a footnote):

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 by our 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.[19]

On April 20, 2009, under Nordyke v. King the Court of Appeals for the Ninth Circuit held that the Second Amendment was incorporated.[20] This is a binding authority over Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon, Washington, and the U.S. territories of Guam and the Northern Mariana Islands, but is only a persuasive authority over the remainder of the United States.

[JMS]

This is a curious sentiment. Clarence Thomas is actually pretty overt about his race as well, and actually most successful minorities of that generation tend to be. These people have been "the first..." all throughout their lives, and I don't think they had much choice other than to be race-conscious. Justice O'Connor was certainly very overt about her gender.

Even "white" members of the Court, like Scalia and Alito, are pretty proud of their own heritages. I think some level of race-consciousness is a very healthy thing. Being grounded in a particular culture can be an important foundation for success. It shouldn't be something to run away from.

I think it's a little more political than that. Latinos are the largest minority in the country, and they are the fastest growing too. They as a block are social conservatives and fiscal liberals which puts them intellectually up for grabs across both parties. George Bush got a majority of Latino's when he won election for his first term. Since that time Latino's have been voting Democrate largely because of the rumblings of anti immigration sentaments coming out of the GOP.

By electing a liberal latino judge, Obama is making it very uncomfortable for the GOP. If they go all out and filibuster her, it potentially puts them at odds with arguable their most important constituency not yet firmly in their grasp. If they don't, Obama get's what he wants and he still get's to say to the latino's Look what I did for you!!,,, Have the Republicans given you a supreme court seat.

It's a pretty smart and very political move by Obama. One which will appeal to the fringes of his own party, as well as moderates.