Obama picks Sotomayor for Supreme Court

Posted by Kendall Harmon

Read it all.

Update: There is more here.

Another update: Ilya Somin (Assistant Professor at George Mason University School of Law) has some thoughts here.

Filed under: * Culture-WatchLaw & Legal Issues* Economics, PoliticsPolitics in GeneralOffice of the PresidentPresident Barack Obama

81 Comments
Posted May 26, 2009 at 8:29 am [Printer Friendly] [Print w/ comments]



1. Katherine wrote:

Please look at this analysis by Stuart Taylor at the National Journal Magazine, usually billed as a non-partisan source.

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”—Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001…Sotomayor also referred to the cardinal duty of judges to be impartial as a mere “aspiration because it denies the fact that we are by our experiences making different choices than others.” And she suggested that “inherent physiological or cultural differences” may help explain why “our gender and national origins may and will make a difference in our judging.”

This does not sound like a judge who even intends to apply the law impartially.

May 26, 8:54 am | [comment link]
2. Jeffersonian wrote:

Indeed, Katherine, Sotomayor was likely the hardest-left of all of the A-list options Obama had.  Your assessment is reinforced by her comments at an address at Duke where she essentially said she likes to make policy from the bench, a clear usurpation of the legislative function reserved for Congress. 

Ms. S obviously sees herself as a politician and legislator whose ukases are only reviewable by other judges.  Unfortunately, as a USSC member, there will be no one to overturn her political preferences.

May 26, 9:13 am | [comment link]
3. robroy wrote:

She was a Bush appointee. An interesting comment from the NYT:

Does this mean that there are now 6 Catholics on the Supreme Court? I fear for Roe vs. Wade.

This, too:

Sonia Sotomayor is a solid choice — smart and hard-working. She has the added advantage of trial court experience — something generally lacking as most of the Justices went right to the appellate bench and “skipped” over the trial court level. While Elena Kagan probably has more wattage–she is inarguably brilliant–Sotomayor’s trial court experience, demonstrated work ethic, and common sense should make her a pick which the President (and the country) will not regret.

She does seem pretty activist.

May 26, 9:13 am | [comment link]
4. Timothy Fountain wrote:

Katherine - good digging.  A clear quote is the most non-partisan way to get at a person’s ideas.

This particular quote shows where we are in America today: polarized, “tribal”, subjective with no common values to lift us above very narrow interests.  And worst of all, we are seeking “one size fits all” solutions from DC instead of leaving some divisive issues to States and municipalities. 

As the President said, “Elections have consequences.”  Here comes another one.

May 26, 9:15 am | [comment link]
5. Katherine wrote:

I am unable to watch much YouTube here because of low bandwidth; however, this link contains a YouTube video of Judge Sotomayor saying that court is where policy is made.  Our Constitution says that the executive and legislative branches are where policy is made.  The courts exist to apply the law, not to make it.

May 26, 9:25 am | [comment link]
6. Jeffersonian wrote:

NB to Dr. Harmon:  The citation in #1 is identity politics, not whether one decides to become a hippie.

May 26, 9:34 am | [comment link]
7. MarkP wrote:

“This particular quote shows where we are in America today: polarized, “tribal”, subjective with no common values to lift us above very narrow interests.”

True, or at least it’s been trending in this direction. Remember the meme, floated by Sarah Palin most brazenly, that there was a “real” America from which Obama did not come? Culture war has pretty much become the main arrow in the RNC quiver in recent years. I think the success of the Obama coalition (whether you believe it was founded in reality or a in vaguely messianic marketing haze) was evidence of a yearning to get beyond that. We’ll see how it goes (so far, just about everybody fears he’s sold out to the other side, no matter which side that is).

May 26, 9:34 am | [comment link]
8. libraryjim wrote:

Culture war has pretty much become the main arrow in the RNC quiver in recent years.

I think you meant DNC quiver. The Democratic party is the more partisan of the two parties in the country, when you get past rhetoric and into actions.

May 26, 9:49 am | [comment link]
9. David Fischler wrote:

Re #7

I think you’re correct that most Americans want to get beyond our polarized, tribally-based politics. I also think it was a most peculiar way to do so, by electing a representative of hard-line identity politics. His choice of Sotomayor—who, to hear the media tell it this morning, is mostly about having a first Hispanic/second woman on the Court—is a clear application of the tribalist principle.

May 26, 10:16 am | [comment link]
10. Katherine wrote:

This summary, written last October, of Sotomayor’s vote in the New Haven discrimination case against white and Hispanic firefighters is a good indication of how she would rule on the Supreme Court bench.  The promotion test was designed to eliminate racial disparities; nonetheless, 19 white and one Hispanic firefighters scored high.  The city refused to promote them and scrapped the whole process to start over.  The firefighters sued, claiming discrimination.  Sotomayor and the majority voted in favor of the racial discrimination and acted to try to prevent an en banc Appeals Court hearing.  The case is now at the Supreme Court, where many analysts think the ruling will be overturned.

If Obama wanted to appoint a Hispanic, he would have been far better to name Sotomayor’s colleague on the Second Court of Appeals, Jose Cabranes,  also a Clinton appointee.

May 26, 10:20 am | [comment link]
11. AnglicanFirst wrote:

An opinion of a ‘culturally faithful’ and ‘Constitutionally faithful’ Independent who belongs to neither the Democrat nor the Republican paties.

Trying to preserve the ‘cultural essence’ of what brought about our Declaration of Independence, our Constitution, and our Bill of Rights and which has uplifted the United States over the past 235 years or so is NOT what the current leadership of the Democrat Party is about.

That leadership seems to be more ‘about,’ for example, using at most a 60% majority in the Senate to IMPOSE IT’S WILL on the remaining 40% of the Senate. 

It should be remembered that that 60% majority is nothing but a ‘snap-shot-in-time’ and that majority was elected not just by Democrats and that that those non-Democrat voters are not in ‘lock-step’ with a Democrat plan for the country.

The next Congress and the one to be elected two years hence may well not have Democrat majorities.  Remember, a sitting Congress has Constitutional means to change what has been done by prior Congresses.  What has been ‘assembled’ can be ‘disassembled.’

May 26, 10:23 am | [comment link]
12. Daniel wrote:

The New Haven case is most instructive.  It show how activists, judicial and otherwise, keep bending,changing and sometimes outright disregarding the rules until they get the result they want.  It ties in perfectly with the assertion of there being no objective truth.  My truth becomes what gives me that which my heart most desires, since my heartfelt, compassionate feelings must be right, since I’m so intellectual and smart.  It happens in the political, social, and religious arenas; always has and always will - something about that unfashionable original sin thing.

May 26, 11:07 am | [comment link]
13. teatime wrote:

I’m surprised. I thought that much-played Duke quote that has been showing up on TV would have removed her from the running. I hope the centrist Dems dig in their heels on this one and vote with their GOP colleagues.

May 26, 11:24 am | [comment link]
14. Clueless wrote:

My thoughts on this subject have evolved.  First, let me say that I had the benefit of preparatory schools and Ivy leagues, and had the benefit of privilege (of which I am not ashamed).  They made me a better person, and I am glad to have had these experiences.  I am also a former academician and furthermore I am Asian.  There is no racial group who have been harmed more by quotas than Asians.  If positions were given by SAT scores, and grades alone, all the faces on the Supreme court, and on Wall street would be Asian. 

How do we choose the “best person” to be a Supreme court judge? 

How have we chosen the “best person” to run our other institutions?  And how have they fared? 


The best and brightest destroyed our financial system.  The overwhelming majority of our investment bankers came from backgrounds of privilege.  Perhaps we might have done better if those on Wall street had lower grades, and but a better understanding of what it meant to have nothing between them and homelessness and hunger than a slender and unstable paycheck.  Maybe folks at the Treasury would have been better stewards if they realized that an insolvent government, and shrinking resources meant that their children would be split up and sent weeping to separate foster families. 

As a physician, I believe that the “best and brightest” in academic medicine have destroyed health care.  They have colluded with government and industry to come up with a system that protects high tech, hospital based academic medicine, while destroying private practice (which is the backbone of the country).  They have winked at obvious inanities with little or no scientific backing like the explosion in supposed “mental health diagnoses” that have placed huge numbers of children on medications.

The “best and brightest” have destroyed education.  It is expensive, poor in quality, and mostly is used to ensure that those who begin behind the curve, stay there permanently and learn to know their place.

The reason for this is that the way one chooses the “best and brightest” is mostly by academic publications.  To get published, one needs both to say something that most people already agree with, and one also needs to care less about the actual craft.  The most active private practitioner, seeing a dozen or more patients each day will never publish a paper, and therefore will never qualify as being “bright” enough to have a say in health care.  The most gifted teacher, actively tutoring difficult children and doing wonders in the school room, will never acquire the credentials needed to have a voice in education.  The most honest bankers, carefully judging merit and assets, and assisting the poor to save money will never make it on Wall street.  The most dedicated evangelists who serve in the prisons and save thousands of souls will never be heard in General convention. 

So how do we choose the “best” person to be a Supreme Court justice?

What, after all, are we looking for?  The items that are usually measured are academic ones.  Who published the most polished papers, and how many?  Who was editor of the Law review.
But what we wish is not a paper polisher.  What we want is a Supreme Court justice who has reasonable legal skills and experience on the bench, and more than this several other qualities:  Common sense.  A sense of fairness.  A sense of honor.  An understanding of other persons, particularly those who are vulnerable, unlovely and who are different.  A work ethic.  A love of this country.  A love of family.  Truthfulness.

Unfortunately these items cannot be measured.  However I have not noticed that these qualities are more likely to be found in settings of privilege rather than the reverse. 

We have tried the “best and brightest”. Maybe “short, and dumpy, loves her country” will do better.  It could scarcely do worse.

May 26, 11:45 am | [comment link]
15. Jeffersonian wrote:

Hmmm…disappearing and edited posts.  Is speaking truth becoming verboten on T19?

May 26, 11:57 am | [comment link]
16. John Wilkins wrote:

I’m not much of a lawyer, but she’s clearly bright and fair.  Unlike most of you, I don’t know if I have the ability to figure out if she’s qualified to be a judge.  I think the comments from the Volkh conspiracy are interesting, but the fact is that the top Liberal lawyers or judges would seem even more liberal than Sotomayor.

In the first quote, i think that the translation would have been “I would hope that choosing a wise Latina would be better than choosing a mediocre White dude.”  It’s a truism. 

At the very least, affirmative action has made it more likely that when a white person is selected, they’d better be more qualified and a guaranteed success than the minority candidate.

Clueless is on to something.  Degrees - and “elite edcuation” aren’t as important as tenacity and conscientiousness.  It does seem that Sotomayor has both of those, however.  Unlike the “best and the brightest” it does seem that Sotomayor is one of those people who may have benefited from affirmative action, but is an example of its success.

May 26, 12:14 pm | [comment link]
17. libraryjim wrote:

Frankly, for me, I’d rather have someone on the SCOTUS who has been shown to uphold the laws of the country, and exhibits a strict application of the Constitution rather than one who a) appeals to international law and b) legislates from the bench.

That’s my only criteria. Race, gender, etc are not high on my list. But then, I’m not making the decisions. But I am writing to those who do to let my views be known.

Jim Elliott
Florida

May 26, 12:21 pm | [comment link]
18. Stuart Smith wrote:

This selection is in perfect keeping with the statist convictions of Pres. Obama.  I agree that this is an illustration of why “elections have consequences”.  Those who voted with their emotions (“oh, how wonderful that we can elect an African American as President!”) may rue the day, if this president continues the momentum away from American democracy toward European Socialism.  Maybe we should have elected John McCain as actual president, while having a separate “People’s Choice” election for those voting for the more popular, “cooler” candidate?

May 26, 12:41 pm | [comment link]
19. Ken Peck wrote:

AnglicanFirst wrote:

Trying to preserve the ‘cultural essence’ of what brought about our Declaration of Independence, our Constitution, and our Bill of Rights and which has uplifted the United States over the past 235 years or so is NOT what the current leadership of the Democrat Party is about.

I’m not at all convinced that “trying to preserve the ‘cultural essence’” is a particularly good idea. After all of the individuals involved in the Declaration of Independence and the Constitution were white males, many of whom were slave owners and believed that the franchise should be restricted to white, propertied males.

Anyone who thinks that Supreme Court decisions, whether favorable to conservative or liberal causes, are not “political” decisions, motivated by cultural factors (remembering that the Court is overwhelming comprised of elite, white males) are living in a fantasy world.

If the previous administration had managed to pack the Court with justices from the extreme right, and that Court reversed Wade v. Roe, would that not be a political decision? Get real.

For decades, “conservative, strict constructionist” justices held that corporations were “persons” and therefore protected by the 14th Amendment and that Blacks were not “persons” protected by the 14th Amendment—in spite of the fact that the 14th Amendment was intended to protect the rights former slaves as freedmen and citizens and not intended to grant special protections to corporations. That was a political policy decision. And, yes, the decisions to reverse those precedents and to adhere strictly to the language and intent of the 14th Amendment was a political policy decision.

What is also totally expected is the right wing Republican reaction to the nomination. No matter who our President picked would have received a resounding “No” from the Party of No, that party that can’t even accept the former Republican President’s Secretaries of State and Homeland Security. Probably the Secetary of Defence will be the next on the list of the Republican Purists.

May 26, 12:54 pm | [comment link]
20. First Family Virginian wrote:

The best and brightest destroyed our financial system.  The overwhelming majority of our investment bankers came from backgrounds of privilege. 

Of course ... a “background of privilege” does not ensure production of “the best and brightest.”  But sadly, it often does ensure that those among its ranks who are not the best and brightest will go right on and falsely presume themselves to be.

Ah ... priviledge has its benefits!

 

 

This should be obvious to all ... and even more obvious to someone from the inside track.

May 26, 12:58 pm | [comment link]
21. The_Archer_of_the_Forest wrote:

I must say I am a bit disheartened, yet not surprised, by this pick. I was hoping for a more moderate, or at least less partisan, candidate what will all the talk about consensus building and change you can believe in. From what I am reading in various sources about her voting patterns and opinions, she seems to be from a rather extreme end of the political spectrum.

I will be interested to see how this goes over on Capitol Hill. Certainly the Republicans are going to scream bloody murder (they can’t seem to do anything else these days.) I think even the Blue Dog Democrats might have some reservations. Given Souter was fairly liberal himself, though not extremely so, I think this will be interesting to see how this plays out.

May 26, 1:00 pm | [comment link]
22. Andrew717 wrote:

Ken, are people supposed to heartily endorse someone with whom they have fundamental disagreements just because. . . well, you never really say why.  Do you honestly think the world would be a better place if everyone thought in lockstep with whatever politician hapepned to be in power at the time?  Think about what you are saying.

May 26, 1:05 pm | [comment link]
23. Katherine wrote:

#16 John Wilkins says, “In the first quote, i think that the translation would have been ‘I would hope that choosing a wise Latina would be better than choosing a mediocre White dude.’ It’s a truism. “

Re-writing what she said to make it sound better may work for you, but I tend to look at what people actually said.

May 26, 1:06 pm | [comment link]
24. Andrew717 wrote:

From the Somin piece:

It should be noted that Sotomayor put “I would hope that” immediately prior to her statement that a “wise Latina” judge would generally make better decisions than a white male one. I don’t think that the “I would hope” materially changes anything in a context where it’s pretty clear that she thinks that the hope is justified. After all, the statement comes in a paragraph criticizing Justice Sandra Day O’Connor’s reputed view that “a wise old man and wise old woman will reach the same conclusion in deciding cases.” Sotomayor’s comment would not be a meaningful criticism of O’Connor’s unless Sotomayor thought that the wise Latina judge really was likely to do better than a white male “more often than not.”

May 26, 1:18 pm | [comment link]
25. Katherine wrote:

The point is that if Alito or Roberts had said that a white male would in general reach better conclusions than a Hispanic female they’d have been immediately disqualified, and rightly so.

May 26, 1:29 pm | [comment link]
26. Ken Peck wrote:

Andrew717 wrote:

Ken, are people supposed to heartily endorse someone with whom they have fundamental disagreements just because. . . well, you never really say why.  Do you honestly think the world would be a better place if everyone thought in lockstep with whatever politician hapepned to be in power at the time?  Think about what you are saying.


It does seem to me that there are those on the right (e.g., Limbaugh and Cheney) who “honestly think the world would be a better place if everyone thought in lockstep.” This seems to be more of a problem with right wing Republicans than with Democrats who (as has been noted) are not members of an organized political party.

I have no idea who would be the “best choice” for Supreme Court justice. However, Sotomayor is the President’s choice, is apparently quite well qualified unless one lays down some political hardline criteria from the right and isn’t guilty of some crime or misdemeanor.

As to what kind of justice she will make, who knows. Presidents, advocates, critics and pundits alike have been surprised by those raised to the Supreme Court.

May 26, 1:41 pm | [comment link]
27. First Family Virginian wrote:

Those who voted with their emotions (“oh, how wonderful that we can elect an African American as President!”) may rue the day, if this president continues the momentum away from American democracy toward European Socialism.  Maybe we should have elected John McCain as actual president, while having a separate “People’s Choice” election for those voting for the more popular, “cooler” candidate?

I voted for Obama … although not for reasons so ridiculous as those noted above.  But while voting for Obama ... I also voted against a GOP that has been hijacked by the most reactionary thinkers and partisan players from among its membership. 

If the GOP does not find a way to distance itself from the anti-American values espoused by its hard authoritarian right-wing ... if it does not learn the art of compromise (even if just within its own ranks) ... then Americans may find themselves with no relevant party alternative to the Democrats. 

As for Sotomayor … I have hope that she will add balance to an already far too right-leaning court.

May 26, 1:47 pm | [comment link]
28. Chris wrote:

you are so right #25, there is a double standard for minority/female candidates.  Perhaps the Judge will announce she is gay or has become a Muslim, then she’ll be a “threefer.”

The fate of this nominee hangs with the Republicans on the Judiciary Committee.  One of them needs to vote for her otherwise she can’t go to the Senate for a full vote.  I’m think weak kneed Lindsay “Grahmanesty” will fit the bill, further alienating him from Republicans here in SC.

May 26, 1:50 pm | [comment link]
29. DonGander wrote:

Sonia Sotomayor said, “Court of appeals is where policy is made. And I know – and I know this is on tape and I should never say that because we don’t make law, I know. OK, I know. I’m not promoting it, and I’m not advocating it, I’m – you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating…”

Yet another modern liberal who can’t get a noun and verb properly together.

Don

May 26, 1:54 pm | [comment link]
30. Pb wrote:

No one wants a justice in lock step with Limbargh and Cheney or for that matter Acorn or the Weathermen. Souter was supposed to be a conservative and Stevens gets more liberal every day. O’Connor turned out to have no real judicial philosophy and thereby became the swing vote. ” The Sotomayor story is a long way from over. On another matter, does anyone know anything about her marital status?

May 26, 1:55 pm | [comment link]
31. Katherine wrote:

Pb, does that make a difference?

May 26, 2:00 pm | [comment link]
32. NewTrollObserver wrote:

Of course, the larger quote of Sotomayor’s statement puts her ideas into context:

[Our] gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

  Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe 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. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

  However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.

May 26, 3:02 pm | [comment link]
33. Clueless wrote:

30. 
She is single, never married, with no partners and no children.  She is said to treat her law clerks like family and take them out to Harry Potter etc.

While I realize that this immediately raises questions in the minds of several individuals on this forum that this must de facto mean that she is a “man-hater, lesbian”, etc. I doubt that any of this is true. 

Very few minority female lawyers have husbands.  I know a large number of them, from high school up and none are married. If you are a Puerto Rican woman (or a black one) who wishes to put in the huge amount of time that a professional career involves, it would be difficult to find a minority man who would support this.  By contrast, any minority male who was also a professional would have an army of women to choose from.  He would not need to put up with the career demands of a minority female in order to have a mate.  Nor would he need to necessarily even offer marriage.  There would be no shortage of women willing to settle for less.  By the same token, a minority male (the overwhelming majority) who was not professional would likely be threatened by a high powered wife.  I personally do not encourage my daughters (both hispanic) to aim for high powered careers.  I think they would be happier being physical therapists and teachers, rather than doctors or lawyers.  (One of them wishes to be a veternarian, and is a straight A student.  If she persists I will support it, but I will also talk to her seriously when she is older about what that might mean to her in terms of marriage and children.  The other, (age 18) has already figured it out (without my assistance), and is content to be a physical therapist, rather than a physician.  Her current boyfriend is blue collar, and I think if he were a mechanic or farmer, they could raise a family, and be happy together.  I plan to spend the money I save on her doctoral education on giving them a house or a farm.

So yes. There is a double standard for minority or women candidates.  But it is not the double standard that you point to.  Sotomayer is short and dumpty but so was Clarance Thomas.  Nobody notices beauty, or its lack in men.  Nobody asks if Souter was married.  If Sotomayer speaks forcefully, she is shrill, if a white male speaks forcefully he is authoratative.

I would be interested in seeing examples of the law she has ruled on.  THAT is the only thing I would be interested in reviewing.  It should be the only thing that anybody would be interested in reviewing.

May 26, 3:06 pm | [comment link]
34. Jeffersonian wrote:

I voted for Obama … although not for reasons so ridiculous as those noted above.  But while voting for Obama ... I also voted against a GOP that has been hijacked by the most reactionary thinkers and partisan players from among its membership. 

If the GOP does not find a way to distance itself from the anti-American values espoused by its hard authoritarian right-wing ... if it does not learn the art of compromise (even if just within its own ranks) ... then Americans may find themselves with no relevant party alternative to the Democrats. 

I’ve heard and read this countless times, and it makes less sense with each reading.  Exactly who are these “reactionaries” and what “authoritarian” measures have they enacted?

May 26, 3:11 pm | [comment link]
35. AnglicanFirst wrote:

Ken Peck (#19.) saidf,
“I’m not at all convinced that “trying to preserve the ‘cultural essence’” is a particularly good idea. After all of the individuals involved in the Declaration of Independence and the Constitution were white males, many of whom were slave owners and believed that the franchise should be restricted to white, propertied males. “
===================================================================

“‘I’m not at all convinced that “trying to preserve the ‘cultural essence’ ’ is a particularly good idea.”

I am more than convinced. 
Look at the cultural disintegration that has taken place since the mid-1960s.  I am not talking about the civil rights movement which I supported then and support now.

I am talking about the disintegration of the family as the central strucural unit of society, the sexual moral depravity that has become common place, and and the personal greed and the lack of a sense of the American “common good” that pervades our “me first” our society.

I am also talking about the asbysmal ignorance of American and world history and of our country’s Declaration of Independence, Constitution and Bill of Rights that pervades the American electorate.

” ‘After all of the individuals involved in the Declaration of Independence and the Constitution were white males, many of whom were slave owners….’ “

Are white males supposed to apologize for being “white males?”  Are we supposed to make some sort of atonement, if so, what is our wrong doing?  If you had used any other racial/ethnic term other than of that “white males” then those of our modern culture would accuse you of being a racist.  Apparently its ‘alright’ to make racist comments about “white males.” Were you a rascist when you made comments about “white males?”  Your comment fits the objective definition of racism.

“...many of whom were slave owners…”
Are you aware that we fought the Civil War in which a whole lot of “white males” died and that we passed the Emancipation Proclamation and then a Constitutional amendment?

Are you historically aware of the imperfections of the entire world in which the Declaration of Independence, the Constitution and the Bill of Riughts were writen?  Imperfect as American society was at that time, our founding fathers were taking a huge step forward in democratic human governance and human rights.

No democracy is perfect because all democracies are dependent upon human beings for their functioning.  Our democracy, imperfect as it was, has been steadily and Constitutionally improving itself over the past 235 years.  But, if we lose the culture that fosters such improvement and we abrogate the Constitution or the Bill of Rights in any manner that plays upon the imperfection of human beings in order to achieve the short-term or short-sighted goals of those following a populous ‘political fad,’ then, our country and our freedoms will be in great danger.

May 26, 3:17 pm | [comment link]
36. Branford wrote:

I wish the media would note that Sotomayer is not the country’s first “Hispanic” for the Supreme Court. Justice Benjamin Cardozo (on the court from 1932-1938) was of “Hispanic” descent - but of course, like Justice Thomas, it is not the “correct” type of descent for those of the politically correct slant.

May 26, 3:26 pm | [comment link]
37. Kubla wrote:

Clueless [#33],  Sotomayor was married in 1976 and divorced in 1983.  She does not have children.  I don’t know if her career was a factor in the divorce, but it wouldn’t surprise me if it was.  Many people who are workaholics (as she seems to be) have difficulties with their relationships.

May 26, 3:39 pm | [comment link]
38. NewTrollObserver wrote:

#36, True, it would be more accurate to refer to Sotomayor as the first Latino/a nominated for the SCOTUS.

May 26, 3:45 pm | [comment link]
39. Jeffersonian wrote:

I would be interested in seeing examples of the law she has ruled on.  THAT is the only thing I would be interested in reviewing.  It should be the only thing that anybody would be interested in reviewing.

From all that I’ve seen, she’s hostile to federalism, property rights, the Second Amendment and equal protection (as in:  everyone is equal).  Like you, I could care less what she looks like.

May 26, 3:46 pm | [comment link]
40. Clueless wrote:

39:  “she’s hostile to federalism, property rights, the Second Amendment and equal protection (as in:  everyone is equal).”

If so, I have a problem with her.  Where precisely has she ruled against property rights, federalism or the second ammendment?

#35:  “I am talking about the disintegration of the family as the central strucural unit of society, the sexual moral depravity that has become common place, and and the personal greed and the lack of a sense of the American “common good” that pervades our “me first” our society. “

Indeed.  I trace this to the acceptance of divorce.  Once divorce became acceptable, then it became necessary for women to have jobs, lest they and their children be impoverished once their youth was gone.  Birth control and abortion would not have taken hold had the marriage contract not been annulled.  The moral depravity and personal greed that has become normal can be traced to men who no longer need think about the future of their offspring.  (Once they are 18, after all, child support stops.  So does any thought of the world that they will inherit).

If we wish to return to a society that values the common good, especially that which future generations might enjoy, then we need to return to a society that asks a candidate for any office questions like “is it true that he walked out on his wife?  My God, what happened to her?  Did they have any children?”  This would be far more useful then asking “How many papers did she publish?”  or “What were her SAT scores”.

Shari

May 26, 4:07 pm | [comment link]
41. Jeffersonian wrote:

Property Rights

Second Amendment

Equal Protection

I can’t seem to find the federalism link right now…I’ll get back to you on it.

May 26, 4:36 pm | [comment link]
42. Cennydd wrote:

Sorry, but after our experience here in California with our Supreme Court justices, I don’t want any more “legislation from the bench,” and I hope that the Senate has the common sense to say NO to President Obama’s choice.

May 26, 5:04 pm | [comment link]
43. Charles wrote:

#42 - do you really think that will happen?

May 26, 5:19 pm | [comment link]
44. Dale Rye wrote:

My impression is that this is actually a case where identity politics led to a more conservative result. With all the pressure from both women’s and Hispanic pressure groups, the President was almost forced to come up with a confirmable Hispanic woman judge. That effectively narrowed the field to Judge Sotomayor. That was fortunate, because the alternatives were demonstrably less conservative.

We know she is confirmable because she has been confirmed twice, once when she was nominated by President G.H.W. Bush and again when she was nominated by President Clinton. On the latter occasion, her confirmation was dragged out for 15 months specifically because the Republicans on the Senate Judiciary Committee saw her as a likely future Supreme Court nominee.

As a prosecutor, I am thrilled that for the first time in ages we will have a Supreme Court justice who served time in the trenches as a state-court prosecutor and who has continued to make reasonably strong pro-law enforcement decisions. As a practicing lawyer, I am thrilled that we will at least have one out of nine justices who has paid her dues as one of the trial judges whose papers the SOCUS is called to grade. Not only will Justice-designate Sotomayor be the only former trial judge; she will also be the most experienced judge to join the High Bench in many years.

From my cursory reading of her opinions, it appears that she is much more likely than the current activist majority on the SOCUS to uphold existing legal precedent and to support decisions made by democratically-elected governmental bodies in reliance on those precedents, even when those decisions conflict with the appellate judge’s personal preferences. See her dissent to the Long Island plane crash decision, for example. If you want to see “legislation from the bench,” read all the decisions from the last week of the 2008-09 Supreme Court term, most of which substituted the judgment of five judges for that of an executive or legislative agency accountable to the voters.

Her conservative approach was also the basis for the New Haven firefighter decision. To me, this is judicial restraint… as opposed to throwing out 40 years of established anti-discrimination law by legislation from the bench. Substituting the personal judgment of an appointed judge for that of Congress, the New Haven city authorities, or some other elected official or legislative body should be seen as inappropriate no matter whose ox is being gored.

It is inevitable that courts must decide cases to the best of their ability, and that the abilities of individual judges are shaped by their personal histories. A court composed solely of white male graduates from prep schools, Ivy League universities, and first-division academic law schools is going to see issues from the perspective of that group. A Hispanic woman from the southern Bronx (even if she is a double-Ivy) with practical experience in deciding cases in a trial courtroom (by all accounts very well—-Major League Baseball is still in business) is going to broaden that perspective. I can’t see that as a bad thing.

I cannot imagine that anyone who opposes her confirmation can reasonably believe that anyone more conservative would replace her.

May 26, 5:19 pm | [comment link]
45. Clueless wrote:

I couldn’t pull up the property rights thing.  As to her siding with New York’s ban on the possession of “nunshaku” , give me a break.

Nunshaku is a karate weapon that consists of two lengths of wood with a chain between them.  It is an effective weapon, mostly in one on one street fighting.  It has nothing to do with “a well regulated militia”.  For a time it was the weapon of choice for young thugs in New York city, where it was used in gang crimes, since it is legal (being “sporting equipment).  Sotomayer simply indicated that this was an item that could be properly remanded to the states. 

I love my shot gun and rifle as much as anybody else, however I refuse to weep because a circuit judge outlaws nunshaku, or brass knuckles or sawed off shotguns or saturday night specials, or any other item whose main purpose is to allow young thugs to beat up less well armed civilians.  If somebody feels they need to cary personal weaponry, there are avenues which permit them to obtain and carry a fire arm.  If they wish to protect their homes, a handgun, or shot gun sufficeth.  (I prefer the Mossman home defender shot gun which is a little shorter than standard, but can still be used for either hunting or trap shooting).  I am perfectly willing to submit myself to being in a “properly regulated militia” in order to keep my right to my arms.

As for siding against the firemen, the fire department had a long tradition of refusing to hire minorities.  Therefore a test was demanded, but the test submitted tested mathamatics, not subjects that were particularly relevant to firefighting.  Since educational achievement correlates with socioeconomic class, and since socioeconomic class is stratified by race in the US, setting up a test for firefighting that focuses on mathamatics tends to disenfranchise blacks. 

A more useful method of assessment might have involved seeing how long somebody could hold their breath in a smoke filled room before bolting for safety.  Or how many 200 pound weights they could drag 100 feet in 10 minutes.  Or how long they could tolerate temperatures of over 110 degrees.

The fire department could have chosen a test such as the above, to determine suitability for fire fighting.  It chose instead to focus on math.  Go figure.  If a female fire chief chose to focus on child development as a suitable test for firefighting, I wonder if any male firefighters would object?

May 26, 5:41 pm | [comment link]
46. jkc1945 wrote:

No one has flat-out said this, yet, but it seems pretty fair to say that, if Ms. Sotomayor had not been a woman and a Hispanic, she would never have been nominated.  President Obama is paying off political debt by her nomination, and for him, the added advantage is her extreme left-of-center understanding of the role of the federal bench. 
As I have had the privelege and honor of saying here and other places, “Don’t blame me.  I didn’t vote for the man.”

May 26, 7:16 pm | [comment link]
47. libraryjim wrote:

Dale, don’t forget that her ‘nomination’ by Bush 41 was done so as a concession by Bush to the Democratic senators who were blocking his nominations.  Her nomination actually came from the Democratic side of the aisle, by Daniel Moynihan, who put forth her name as one they would confirm.  Bush allowed it, because it broke the deadlock.

May 26, 7:58 pm | [comment link]
48. Passing By wrote:

Jeffersonian, maybe the next justice will be pulled from the ranks of Peter, Paul, and Mary. 

BTW, where did YOU prep? 

grin

May 26, 8:23 pm | [comment link]
49. First Family Virginian wrote:

In response to another post Anglican First writes If you had used any other racial/ethnic term other than of that “white males” then those of our modern culture would accuse you of being a racist. 

If the poster had used any racial/ethnic term other than that of “white males” ... he would not have been representing the truth … as the cultural essence of the time to which you refer was “white male” dominated by law. 

And … I don’t think the poster was suggesting that we must apologize for being white males ... unless, of course, we still aspire to a culture dominated by white males.

May 26, 9:38 pm | [comment link]
50. NewTrollObserver wrote:

#48 jkc,

Do you believe Sotomayor is qualified to serve as a SCOTUS justice?

May 26, 11:33 pm | [comment link]
51. Katherine wrote:

Matt Thompson #32, #33, thanks for posting the entire quotes.  I had already read them; most of the sources I read are good at posting the context.  It doesn’t change my mind.  The place for these perspectives to be presented and argued and considered is in legislatures, where laws are made.  The assertion that Alito and Roberts don’t need to make such an assertion because they’re white guys is offensive to all white guys.  Do you honestly think that white judges, in twenty-first century America, will not judge cases concerning other groups fairly?  I support justice based on the facts and the law, not justice based on identity group, however defined.

May 27, 12:05 am | [comment link]
52. Katherine wrote:

Clueless, the New Haven case involved people who were already firefighters.  They were applying for promotion, not being judged on basic strength and fire-fighting physical aptitude.  They were refused promotions because they weren’t black.  Are you sure that in New Haven white firefighters (and one Hispanic) come from drastically different socio-economic backgrounds than black firefighters?  Schools have been integrated a long time now, thank goodness. I wouldn’t be at all surprised to find that successful and unsuccessful promotion candidates attended the same schools in blue-collar New Haven areas.

May 27, 12:14 am | [comment link]
53. Katherine wrote:

Dale Rye, #46, I can see many positives in Sotomayor’s background and experience.  But the more I think about your characterization of the New Haven firefighter decision as “conservative” the more it bothers me.  We have a fifty-five year history now of federal courts ruling that racial discrimination is contrary to the Constitution.  Allowing the New Haven fire department to discriminate against promotion candidates based on their race is directly opposed to that tradition.  The city designed a promotion process and when it didn’t like the race of the successful candidates it decided to try again to promote other people whom it prefers for racial reasons.  We are trying, or I thought we were trying, as a nation to view people as individuals and not simply as members of racial, ethnic and religious groups.  I don’t see how allowing a local government to discriminate produces justice for the individuals involved. The city would have done better to promote this group and re-examine its processes before the next go-round, if it felt there was something wrong with the process.  As it is, Sotomayor and her colleagues voted, without comment, to ratify racial discrimination by a local government.

May 27, 1:23 am | [comment link]
54. Katherine wrote:

Here, at Reason Online, is a discussion of the New Haven case and others.  The claim of unfair educational advantage falls apart when you realize that Frank Ricci, the lead plaintiff, is a dyslexic who spent months listening to audio tape preparations for the exam because of his reading difficulties.  He studied hard, he did well, and the promotion was denied.  And according to this article, the nunchuck issue is not about the weapon per se but about whether the Second Amendment applies to cities and states or only to the federal government.  That issue is probably headed to the Supreme Court in the near future.

Also, here is a review of her rulings which have been handled by the Supreme Court.  She was got only about 25% agreement from the Court on her opinions.

May 27, 5:20 am | [comment link]
55. robroy wrote:

Dale Rye wrote, “I cannot imagine that anyone who opposes her confirmation can reasonably believe that anyone more conservative would replace her.”

Absolutely. The lone dissenter in the California Prop 8 is a hispanic and he was being considered by Obama. We did much better with Sotomayor.

Libraryjim writes, “Dale, don’t forget that her ‘nomination’ by Bush 41 was done so as a concession by Bush to the Democratic senators who were blocking his nominations.  Her nomination actually came from the Democratic side of the aisle, by Daniel Moynihan, who put forth her name as one they would confirm.  Bush allowed it, because it broke the deadlock. “

For some more details on the political machinations of Bush the first’s appointment, see AnglicanWannabe (http://tinyurl.com/ot437y). He reminds us that Bush the first gave us Souter, too.

She is supposedly very tough on crime.

The other (albeit very cynical) factor is that she is a juvenile onset diabetic. Most statistics at this point predict that type 1 diabetes shortens the lifespan by about 15 years.

May 27, 7:18 am | [comment link]
56. robroy wrote:

And those who question her qualifications: She was summa cum laude at Princeton, graduated with honors at Yale and was on the Yale Law Review.

May 27, 7:21 am | [comment link]
57. jkc1945 wrote:

#52, no, she has disqualified herself with two statement she has made.  (1) “I would hope that a Latino woman could make . . .. better judgments than a white man, due to her rich experience. . .”  and “courts make policy. . . .”  In both of these statements, she shows that she will violate her oath to judge fairly betyween rich and poor, and judge without presumption.  She is concerned with her ability to empathize and feel for those who appear before her, but never speaks of using The Constitution and only The Constitution to make her decisions.  She is completely unqualified.

May 27, 7:21 am | [comment link]
58. Ken Peck wrote:

37. AnglicanFirst wrote:

Ken Peck (#19.) “‘I’m not at all convinced that “trying to preserve the ‘cultural essence’ ‘ is a particularly good idea.”
I am more than convinced. 
Look at the cultural disintegration that has taken place since the mid-1960s.  I am not talking about the civil rights movement which I supported then and support now.

Perhaps we need to clarify what “cultural essence” we are talking about. If we are talking about the culture of the Continental Congress and Constitutional Convention in the 18th century, we are talking about a group of white males (that’s simply is a historical fact) whose membership included slave owners and those who believed that the franchise should be limited to white, male property owners (again a simply a historical fact). That is one “culture” and the culture of the Declaration of Independence and Constitution, which was the context of the post to which I was responding.

I would agree with you that there has been much wrong with American culture in the past half century or so. (Good, grief, Chesterton wrote What’s Wrong with the World over a century ago!) There’s also some things which are right—including a more open acceptance of racial and ethnic diversity and the participation of minorites in the political and economic systems.

I suppose the issue is what “Golden Age” you want to talk about. However, I don’t think reaction (which is different from conservatism) is a particularly viable option. The past 50 years are a part of our history and can’t be unwritten.

And ultimately the transformation of our culture into a culture of “family values” will ultimately be a matter of “new hearts” rather than the law.

May 27, 8:58 am | [comment link]
59. Ken Peck wrote:

Dale Rye, #46,

We have a fifty-five year history now of federal courts ruling that racial discrimination is contrary to the Constitution.  Allowing the New Haven fire department to discriminate against promotion candidates based on their race is directly opposed to that tradition.

That’s a half truth. We also have a half century legal tradition of affirmative action, which recognizes that some minorities have experienced generations of de jure discrimination which puts them at a disadvantage in some situations where they must compete with individuals with a more beneficial heritage.

Once, many years ago I was a “victim” of reverse discrimination when I was explicitly denied a promotion on the grounds that I was an Anglo and the employer needed to hire a Hispanic. I suppose I could have filed suit. But I took advantage of my prior education, got more education and within a few years advanced beyond that promotion—that probably would have been impossible for whoever got the original job.

May 27, 9:12 am | [comment link]
60. Ken Peck wrote:

52. NewTrollObserver wrote:

#48 jkc,

Do you believe Sotomayor is qualified to serve as a SCOTUS justice?

Yes. She has an outstanding record as a law student at a major school, successful experience as a trial lawyer, trial court judge in state and federal courts and as an appelate judge. She is among “the brightest and best.” Even the Republicans who opposed her nomination by Clinton to the appelate court recognized this; they opposed her precisely because she might someday be named to the Supreme Court!

And actually the opposition to her nomination clearly indicates that what she said about courts making policy is true. The objections have to do with the contention that she would rule in ways contrary to the policies which the objectors would have the courts advance. It also most likely relates also to the cultural perspective of the opposition. (And yes, I am one of those white, Anglo, middle class male with generations of that as my heritage.)

The other fact is that she will replace a retiring justice who is at least as liberal as she is, so her appointment will not materially alter the policy of the court.

She’s apparently a good choice. And the GOP could easily further diminish their political prospects by their opposition. Apparently, this opposition is again an appeal to their diminishing base and will do nothing to appeal to moderates or Hispanics.

May 27, 9:29 am | [comment link]
61. Katherine wrote:

Ken Peck, #61, I believe you are replying to me, not Dale Rye.  The judicial history in favor of racial quotas is considerably more spotty than the history in favor of equal rights, which is in the Constitution.  I believe recent cases have trended in the direction of requiring the government to show that there has been deliberate bias before it will order a remedy involving quotas.  Racial quotas are not in the Constitution.

May 27, 9:47 am | [comment link]
62. Katherine wrote:

I also think Latinos may be making a strategic error in supporting quotas.  It was not too many decades ago that a man named Frank Ricci would not have been a favored “white man” but rather a disfavored Italian.  There are stories in my husband’s Central European family about some ugly incidents when they came to the US.  Two generations down, they’re part of the mainstream.  Latinos will be too; it’s happening rapidly as they insist their children learn English and achieve (as Sotomayor did herself).  It’s a natural pattern.  We’d do far better to insist on equal treatment for all rather than trying to decide who should get the preferences.

May 27, 9:55 am | [comment link]
63. Ken Peck wrote:

63. Katherine wrote:

The judicial history in favor of racial quotas is considerably more spotty than the history in favor of equal rights, which is in the Constitution.  I believe recent cases have trended in the direction of requiring the government to show that there has been deliberate bias before it will order a remedy involving quotas.

There’s a reason for that. Of the current court, 7 were appointed by Republicans: Stevens (Ford), Scalia & Kennedy (Reagan), Souter & Thomas (G.H.W. Bush) and Roberts & Alito (G.W.Bush); only two by Democrats: Ginsburg & Breyer (Clinton).

Four of the justices are considered “liberals”: Stevens, Ginsburg, Breyer and Souter; four are considered “conservatives”: Scalia, Thomas, Roberts and Alito. Kennedy is the “conservative leaning” swing vote.

The appointment of Sotomayor, if she joins the liberal justices will not alter that balance because she would replace Souter who is at least as liberal as she. (And it must be remembered that it is impossible to guarantee which policy side a nominee will join on the court—Presidents have more than once been surprised by their nominees.)

May 27, 10:42 am | [comment link]
64. Katherine wrote:

It’s all politics, then, Ken Peck?  I’m arguing for constitutional principles.  I would agree with you that during the history of our republic these have not always been consistently applied, but as goals and governing principles they command my allegiance.  If a liberal-majority court is able to overturn foundational principles Ben Franklin will have been right when he said we have “a Republic, if we can keep it.”

May 27, 10:47 am | [comment link]
65. libraryjim wrote:

Katherine,
My heritage also includes those who were discriminated against when they came to this country in the 1860’s, faced with such insults as businesses posting signs that read:

Help wanted—no Irish need apply!

Not only were they the ‘new wave’ of immigrants—they were also Catholic! A double strike against them by the predominantly Protestant majority in the US at the time.  The Italians faced similar discrimination when they arrived later on.

But through perseverance, hard work and sheer determination the Irish overcame that to become the leaders in the Police and Fire Departments, and rose to positions of prominence in politics.  NOT because of laws granting them ‘affirmative action’ but on their own.

Jim Elliott (Scots-Irish-Polish)
Florida

May 27, 11:02 am | [comment link]
66. Katherine wrote:

Right, Jim.  My husband’s people worked for everything they had—and his parents had more than mine, long-American Anglos. 

I was just beginning to be conscious of politics when John Kennedy ran for President.  Could we have an Irish Catholic?  Now it’s not an issue at all.  I have black neighbors and friends who are doing very well, and the numbers of such hard-working successful people are increasing dramatically.  I have Korean, Vietnamese, Egyptian and Thai friends who are doing the same.

May 27, 11:27 am | [comment link]
67. Clueless wrote:

“But through perseverance, hard work and sheer determination the Irish overcame that to become the leaders in the Police and Fire Departments, and rose to positions of prominence in politics.  NOT because of laws granting them ‘affirmative action’ but on their own. “

Umm. Scarcely.  The Irish indeed overcame oppression to rise to power.  They did so via a combination of blending in (they were after all Caucasian) and manipulating the levers of power via unions, Taminy hall and the like during the last Great Depression.  Upon reaching power they (naturally) helped their own.  They used the levers of power to alter public policy toward Ireland and Great Britain.  Then (after they had reached power) they largely assimilated over the past 40 years.  I do not blame them.  It is natural to feel sympathy for those who remind you of yourself.

The Jews also rose to power in a similar fashion in this country.  Most of the garment workers in New York were Jewish migrants, their sons went to business and law school, and being unable to break into the traditional businesses or “white shoe” (gentlemanly) law firms (due to discrimination) went off into such fertile new fields as medical malpractice, investment banking and the like.  They actively lobbied and gave focused campaign contributions to improve their positions in these new fields.  They assisted in the alteration of public policy toward israel.  Others were active in academic medicine, and again, actively supported their own.  Nor have I noticed that they have fully assimilated, but then Israel has been under attack for the entire period of my life, so I imagine that is too much to expect.  I dare say it will happen in another 40 years.

The Asians have been persevering, etc. and have been discriminated both by the legacy mentality of the good old boy establishment currently in place as well as the affirmative action mentality of black activists who are after all using identity politics in a fashion no different from that of the Irish and their unions 80 years ago.  They are not numerous enough to be play identity politics, and since most of them came from the professional classes, (unlike the Italians and Irish) they are socially disinclined to engage in union thuggery to achieve their aims.  They are also relatively new, and have not found a clear voice.

Black activists are simply using the levers of legislation (not unlike Jewish activists) beginning 40 years ago.  They have not, however, (yet) assimilated, but then they have only had equal opportunities since the 1960s.

Hispanic activists are beginning to use identity politics, but Sotomayer went through Princeton at a time that being Hispanic got you no more points than being white.  As Hispanics have gotten more clout they have managed to claw back some of the affirmative action stuff that the black activists championed.  Frankly I welcome this since I think it weakens affirmative action as a whole.  The more folks are affirmed the less meaningful the whole nonsense becomes.

So let us not have any nonsense about how “perseverance, hard work and sheer determination” is all that is necessary to succeed in the US.  If that were true, there would be no need for unions or lawyers, or even politicians (other than to vote on going to war) and we could all rest contented in the good will of big business, banking, government and other industries to always do whatever is right, because “after all we are all Americans.”

May 27, 11:47 am | [comment link]
68. Ken Peck wrote:

66. Katherine wrote:

It’s all politics, then, Ken Peck?  I’m arguing for constitutional principles.  I would agree with you that during the history of our republic these have not always been consistently applied, but as goals and governing principles they command my allegiance.  If a liberal-majority court is able to overturn foundational principles Ben Franklin will have been right when he said we have “a Republic, if we can keep it.”


It was politics at the Constitutional Convention. There was political manuevering and compromise at the convention, of which Franklin was certainly involved. That was a reality then, that is a reality today and it will be a reality as long as there is a human society. A republic is, in point of fact, a political system—a novel one at the time and still one of many in the world today.

Nor is it at all clear that “a liberal-majority court” would be “able to overturn foundational principles.” Such a court might “overturn” your interpretation of “foundational principles;” it does not follow that such a court might uphold other’s understanding of “foundational principles.”

Again, the “foundational principles” envisioned an Anglo society in which slavery was accepted (and slaves were only 3/5ths a person) and in which only propertied males would be entitled to vote. There is nothing whatever in the Constitution they devised to give the Supreme Court the power of “judicial review.” Etc.

The appointment of Sotomayor will not alter the existing conservative domination of the Court. Sotomayor, if confirmed, will replace a retiring justice who is at least as “liberal” as she.

May 27, 11:55 am | [comment link]
69. Clueless wrote:

“So let us not have any nonsense about how “perseverance, hard work and sheer determination” is all that is necessary to succeed in the US. “

I might add that I have done extremely well for myself (and so have my brothers and sisters) by _in part_ “perseverance, hard work and sheer determination”.  However my self conceit is not quite so great that it makes me blind, and deaf and unable to appreciate the other extremely significant advantages that I have had.  These included an intact family who put our education above all material comforts, including furniture, vacations, food beyond basic levels, and clothing (I recall winters wearing coatsleeves that reached my elbows).  It included a culture and family that reminded us that we were (however down at the heels) members of “the house of the victorious lion”.  We could afford to look down our noses at the well dressed, and comfortable “barbarians” who tried to bully us because we truly did believe that we were superior.  We were discriminated against (quite a lot actually) but it did not alter our self image which was transmitted by our family not our peers (either in school or the workplace). 

I think these foundation myths are quite helpful.  White Americans have a myth about “my ancestors came to the US and by perseverance, hard work and sheer determination (not to mention stealing incredibly fabulous pasture land from the native americans and having several generations without taxes) I became wealthy and prosperous.” 

Irish Americans have a myth about “my ancestors came to Ellis Island, and we faced oppression and discrimination but thanks to perseverance, hard work and sheer determination (not to mention setting up unions and engaging in mafia tactics to change the rules of business) I became wealthy and prosperous.”

Unfortunately, African Americans have not yet managed to internalize a good foundation myth about themselves.  I’m sure they will come up with something in good time.

In the meantime, I too have my foundation myth which links my prosperity to my industry, courage and other good qualities.  It is a nice foundation myth.  However I’m not dumb enough or arrogant enough to belive it.

May 27, 12:16 pm | [comment link]
70. Katherine wrote:

Obviously I’m not going to convince you, Ken Peck, that the written Constitution as amended has meaning.  The English, without a written constitution, are losing many of the rights which are enumerated in our document, and I oppose our going they way they have.

May 27, 1:04 pm | [comment link]
71. Ken Peck wrote:

72. Katherine wrote:

Obviously I’m not going to convince you, Ken Peck, that the written Constitution as amended has meaning.  The English, without a written constitution, are losing many of the rights which are enumerated in our document, and I oppose our going they way they have.

Obviously the written Constitution as amended has meaning. But like anything in written English, it is subject to various interpretations. It is equally obvious that before the written Constitution was even ratified and ever after, there were disagreements over the meaning of the written Constitution.

Some of us regard the detention camp at Guantanamo as a violation of the meaning of the written Constitution and its amendments. Some of us regard warrantless wiretaps as a violation of the written Constitution and its amendments. Some of us regard the Second Amendment as applying to well ordered militia. Golly, and to think we have a written Constitution to prevent this erosion of our liberties like those awful, unenlightened Brits.

There lawyers in the Bush administration who held all sorts of things as being constitutional. In some cases the conservative Supreme Court differed.

You seem to think that there is only one legitimate interpretation of the written Constitution—yours. And, in that case, we really don’t need nine justices. You’ll just tell us what it means. I say, there’s a way we can trim waste out of the federal budget!

But here’s one you’ll have to decide early on. The written Constitution states that the several states must give “full faith and credit” to folks in other states. That has traditionally meant that a license granted in one state must be recognized by other states. You don’t have to have a separate license for each state in which you drive. Similarly a contract made under the laws of one state must be recognized in other states. One such example of contract-license would be marriage. Now that several states grant marriage licenses to same sex couples, do other states, that do not recognize same sex marriages have to recognize those “marriages” when the couple move into the state? That one most likely will show up on the Supreme Court docket in the not to distant future. Now, are the judges to decide that one on the basis of the full faith and credit clause written into the Constitution? Will they be “making policy” if they so deside? Will they be subversive “activists” if they “make the opposite policy” with no Constitutional grounds? Enquiring minds want to know.

May 27, 2:36 pm | [comment link]
72. Andrew717 wrote:

That’s actualy a fairly easy question, Ken.  Yes, they should be recognized.  No different from decades ago when people would go to another state for a quickie divorce or fly to Vegas to get married.  Time for your next attempt at a straw man?

May 27, 3:21 pm | [comment link]
73. First Family Virginian wrote:

There is no racial group who have been harmed more by quotas than Asians. If positions were given by SAT scores, and grades alone, all the faces on the Supreme court, and on Wall street would be Asian.

Of course, college admission – and one might assume a professional life thereafter—has never been based solely on SAT scores and grades. The reason ... and I’m sure you realize this ... is that SAT scores and grades alone do not determine success.  Universities want to produce more than graduates who perform well on tests ... they want to produce people who will contribute to society in significant ways.

May 27, 3:26 pm | [comment link]
74. NewTrollObserver wrote:

#71 Clueless

Unfortunately, African Americans have not yet managed to internalize a good foundation myth about themselves.  I’m sure they will come up with something in good time.

Such creation of a GFM (“good foundation myth”) among African-Americans does exist, but the problem is that unlike other ethnic groups, African-Americans did not undergo a process of immigrant-selection (in which only certain, motivated, subgroups of an ethnic group immigrate to America). So the group known as African-Americans includes many who have adopted a capitalist ethic, and many who have not.

But getting back to the question of a GFM being created among African-Americans, there are several examples, some going back to the 1800s:

1. Antebellum Blacks, both North and South, saw themselves as the true Christians in America, in part because a slave-owner who claimed to be Christian was not really Christian. Frederick Douglass went so far as to claim that the Christianity practiced by much of white America was not Christianity at all.

2. Starting during slavery, and continuing into the present-day, many Blacks saw themselves as the true Jews, or at least as Jewish as any other Jew, since they read their experience of slavery into Exodus, and because of the roles of Egypt and Ethiopia in the Bible. Rastafarians represent a very interesting example of a GFM being created among Afro-Caribbeans, based on an Ethiopian-Judaic tradition.

3. The Nation of Islam is one example of an Islamic-based GFM. As a counter to whites claiming Blacks were inferior, the Nation of Islam (which should not be confused with Islam proper) argued that Blacks were the original people, and that whites were created around 6000 BCE by a mad-scientist via scientific breeding. There are, of course, positive as well as negative effects of such a GFM. But the NOI did manage to create successful businesses, farms, and schools, pretty much independently of outside aid. (Nowadays, most former NOI members are orthodox Muslims.)

4. The Afro-centric movement, with its emphasis upon Egypt as the cultural inspiration for ancient Greece and much of the Middle East, and its belief that Egypt originated within a distinctively African cultural context, is another GFM. Recent discoveries of human ancestors in Africa, as well as genetic evidence of the African origin of humanity, has helped bolster other elements of the Afro-centric GFM.

5. There are also some African-American GFMs influenced by Hinduism and Buddhism.

May 27, 4:43 pm | [comment link]
75. Clueless wrote:

#75:  “The reason ... and I’m sure you realize this ... is that SAT scores and grades alone do not determine success.  Universities want to produce more than graduates who perform well on tests ... they want to produce people who will contribute to society in significant ways. “

No kidding.  Other determinates, post graduation include mentoring by those currently in positions of authority, contacts (the main reason prep schools and Ivys exist), grooming and selection for choice assignments.  These other determinants require a certain amount of help from the powers that be.  It is possible to succeed by the force of “perseverance, hard work and sheer determination”, but let’s face it people are human, and they naturally tend to favor those who remind themselves of themselves.

There is a certain cognitive dissonance involving those who complain that the firefighters should have accepted a test for promotion based on mathamatical abilities (which favored whites over blacks) but who then suggest that similar tests (that favor asians over whites) should not be used, as these are not predictive of who is likely to “contribute most to society”.

May 27, 7:23 pm | [comment link]
76. Clueless wrote:

#76:  “to the question of a GFM being created among African-Americans, there are several examples, some going back to the 1800s: “

And I am sure that in another forty years, after African Americans have been assimilated (like the Borg) there children will tell everybody that when they came “as slaves in a foreign land, they were opressed and discriminated against, but thanks to ‘perseverance, hard work and sheer determination’ they succeeded triumphantly”.  As with other foundation myths, the messy in between parts (like Obama’s LSATS and SATs) will have been mercifully forgotten.

And that’s okay by me.

May 27, 7:28 pm | [comment link]
77. libraryjim wrote:

Um, clueless, I’m not sure how much of “MYTH” is in the American Dream our forefathers made up later on.  My ancestors pretty much did succeed by sheer determination and the fact that no matter how bad they had it HERE, it was much better than where they came from.  And my ancestors, but the Irish and the Polish, DID come through Ellis Island, legally.

May 27, 8:57 pm | [comment link]
78. Clueless wrote:

I think we all believe that we or our ancestor succeed through “sheer determination”.  This is not to negate the sacrifices of the pioneers.  However in point of fact the share croppers of the post Civil war south also worked hard (and were grateful that they were at least no longer slaves).  There was, however, a difference in the opportunities available to the pioneers who had land for the taking, and the black freedmen who did not.  Similarly, while nobody doubts that the Irish escaping the potato famines worked hard, the unions helped make their lives immesurably better.  Without the unions the Irish in debt to the company store would be no better than the share croppers.  What the unions and Taminy hall did for the Irish, I see the “community organizers” and liberal democrats doing for the African Americans.  From a strictly “just” point of view I deplore the rise of the unions.  We honor them because we have been trained to do so in a post FDR world.  At the time they were seen by the priviledged class of the day as thuggish, ill educated brutes stealing the fruits of the hard working businessmen who had built up the nation through the fruits of their hard work, and perseverance etc. etc.  From a strictly “just” point of view I deplore affirmative action.  However in 40 years I doubt that my children will see it this way.  They will have been raised in a different world.

Justice is unfortunately, quite complicated.  I am just glad to have been fortunate in achieving the American dream.  I do not pretend that it is entirely by my own or even by my parents merits.  Opportunity had a great deal to do with it, and that opportunity was not available to everybody.

May 27, 9:25 pm | [comment link]
79. libraryjim wrote:

Just a point of order: the unions of which you speak were FOUNDED by those Irish to help one another (e.g., “The Molly Maguires”). Not government intervention. They did have their place, as in the company controlled mining town reformation.  My parents still remember THEIR parents working for ‘the company’, and it wasn’t pleasant. As for their being ‘thuggish’, the unpleasant truth is that they were, and often accomplished their goals through intimidation, violence, and vigilantism (e.g., “the Molly Maguires”).  SOme of my family still worked the mines as early as the 1960s, and maybe later.  My Polish grandfather died of complications of ‘Black Lung’, from his time in the mines before he earned enough money to buy a small farm in Eastern Pa.

Another factor that helped the Irish was, of course, the Civil War, with the Irish distinguishing themselves in regiments on both sides of the conflict.  One of these was one of my ancestors, a great-great-Uncle, Philip Sheridan.

Might I recommend two excellent documentaries, both from PBS, on the immigrants of the 1800’s:

The Irish in America
Being Jewish in America (or was it “The Jewish Americans”?)

I will readily acknowledge that the blacks in America did have a different road to navigate. They did not choose to come here (although many Irish didn’t really want to leave their home country, either, but in a different way), and even their liberators (the abolitionists) wanted them to leave the country rather than freed to live a life here, with the government promised “40 acres and a mule”.  However, we have made great strides in the last 60 years towards a more equal society, and today is much different than even the situation in the 1960’s—thank goodness! so much so that I think affirmative action rules can be greatly relaxed, and in many cases, eliminated.

May 27, 10:18 pm | [comment link]
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