Squaring the Culture




"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

07/20/2009 (9:04 am)

Bork Weighs In on Borking

BORK CONFIRMATIONS HEARINGS 1987After I observed about a week ago that the Bork hearings in 1987 had changed the judicial selection process into a blood sport, I found an interview with Judge Robert Bork concerning the Sotomayor hearings. I was intrigued to discover that he does not entirely agree with me concerning the reason for the change. He blames the political nature of confirmation hearings on the growing activism of the Supreme Court itself.

Here’s Judge Bork’s version:

Newsmax.TV’s Ashley Martella observed that Bork’s “savaging by the left” forever changed the way judges are confirmed, with politics and demographics becoming more important than competence and qualifications.

“That’s entirely true,” said Bork, whose latest book is “A Time to Speak — Selected Writings and Arguments.”

“But the Supreme Court has only itself to blame for that. The Supreme Court made itself, starting in the 1950s, into an increasingly political institution, and once you’re a political institution with that kind of power, people are going to fight to control the institution any way they can.

This sounds right to me, and I stand corrected. The real shift is the result of judicial activism — the Court inserting itself into current politics and making law, whereas its constitutional role limits it simply to deciding constitutional issues regarding existing law. As soon as the Court asserted itself as a maker of federal policy, judicial confirmations became political events.

Bork actually does not roll the clock back far enough; I’m thinking that the real damage was done by Franklin Roosevelt in the 1930s, when Roosevelt was prevented from turning the United States into a socialist paradise by that oh-so-inconvenient Constitution, and tried to circumvent it by packing the Court. As with so many other things in recent American history, the real deterioration traces back to the insertions of Marx and his stepchildren into modern politics. The judicial activism of the 1950s was certainly the work of Marx-influenced judges flocking to the courts in the 1930s to “change the world.”

In case you’re wondering, Judge Bork does not consider Judge Sotomayor qualified to sit on the Supreme Court, and says he does not take her seriously when she says she’s governed by law.

Bork called confirmation hearings such as Sotomayor’s “something of a dance. The opposition asks tough questions, the nominee gives a soft and evasive answer and assures everybody that fidelity to the law is the only thing that matters.

“Then having gotten past that, when they’re on the bench they go back to their prior practice of deciding politically. I don’t take Sotomayor’s protestations that she’s entirely governed by law seriously. I think the statements she’s made and the rulings she’s made show that she’s not governed entirely by law.”

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37 Comments »

July 20, 2009 @ 10:11 am #

I think it will be a national embarrassment if Sotomayor is appointed to the Supreme Court. I think her abilities are considerably less than we should consider necessary for appointment, and I agree with Bork that she’s basically a liberal shill, seeking a vote on an activist court.

Nevertheless, she’s replacing an equallly reliable leftist vote, and because of her lack of skill, is unlikely to be convincing to anyone on the conservative wing of the Court. There are probably judges out there who might possibly sway a vote or two – I don’t think she’s it. So…the change of the voter is a neutral one, and the influence of the participant is a loss to the activist leftists. Maybe it isn’t a total negative in the long run.

July 20, 2009 @ 1:30 pm #

Without a doubt, Bork is the man we should have had on the Court. But our highly politicized process just could not stand that and had to shoot him down. We are much the poorer for it.

July 20, 2009 @ 4:02 pm #

The change is neutral for the short term, yes, but given the potential longevity of her appointment, it could be quite detrimental down the road from here. But then, that would most likely be true for any appointment from our current occupier of the Oval Office.

July 20, 2009 @ 8:20 pm #

I think the “she has less ability” line would have easily applied to Clarence Thomas, also. Think what you want about her judicial activism, but her life story is remarkable…as is her level of accomplishment.

It is not by mistake that the Bar association gave her full recommendation.

July 21, 2009 @ 10:27 am #

>>her life story is remarkable>>

What is remarkable about it?

It’s true that her father died when she was only 9, and her mother raised her alone, but that isn’t particularly remarkable…

July 21, 2009 @ 10:53 am #

Just ran across this:

http://www.newswithviews.com/Devvy/kidd455.htm

I’ve never been to this site, and don’t know how reliable it is, but it looks like it’s pretty well researched.

July 21, 2009 @ 10:54 am #

That should read…”never been to this site _before_.”

July 21, 2009 @ 11:27 am #

Darkhorse,

I may be missing something, but what does her life story have to do with anything? Should we care what someone’s life story is? If someone does something heinous, does it become more or less heinous if they had a very rough upbringing, or a soft easy one?

How she has acted in her past judgments, How she has acquitted herself as a lawyer, all of these things have bearing on whether she should be confirmed to a lifetime appointment to the highest court in the land, able to change the course of American policy and society with the stroke of a pen.

Honestly, I do not care where you came from, or even what you have said, it is what you DO and have DONE that are all that matter. Of course, that is true no matter what we are talking about.

July 23, 2009 @ 12:16 am #

Horatius -

I make no representations whatsoever that I am arguing that she deserves a place on the Supreme Court. I will let the Bar Association’s resounding recommendation speak to that. I am uneducated about her.

But her resolve to pick herself up and get out of the life of the poor in the inner city is a great example to others who are there (and don’t seem to have the same resolve). If you do not think these are things that she DID or has DONE, then I don’t get it.

July 23, 2009 @ 6:03 am #

darkhorse –

1) Please stop talking about the Bar Association as though it were an unbiased professional organization. The ABA has a very, very strong leftward slant, and routinely endorses policies based on political impact.

2) To talk about Sotomayor’s “example” and then say, “But this should have no bearing on her fitness for the Supreme Court,” is simply and utterly dishonest. Why, exactly, are we talking about Ms. Sotomayor in the first place? Do you really expect us to believe you’re bringing up her “example” in reference to anything else??? Bosh. Be honest.

3) The link SueK posted leads to a troubling discussion about an ongoing bankruptcy scam apparently being run by a judge in upstate New York. Judge Sotomayor allegedly helped to protect this judge in one of the most egregious cases (a mid-level executive who ran the bankruptcy division at a major bank, who was playing the bankruptcy courts to dismiss some $98,000 worth of debt) by dismissing as evidence all possible sources of information that could provide accounting clues to where the alleged felon stashed the money. In her handling of the New Haven firemen, she (along with the rest of the 2nd Circuit) dismissed the claims of the firemen without even a hearing. Reports about her from the field routinely say things like “overbearing” and “not very bright.” She’s frankly lying about her stance on judicial activism, and I think everybody knows it. If you want to support another liberal on the bench, fine, say so — but please don’t pretend that this pick has anything to do with either character or judicial excellence, because there are SCADS of judges out there with better credentials.

She was picked because she’s a suitable hard leftist, an ideological clone to the President who has the credentials to make the cut and is protected by identity politics.

July 23, 2009 @ 6:41 am #

Let’s face it, she is a mediocrity at best, nominated by a mediocrity.

July 23, 2009 @ 11:40 am #

>>But her resolve to pick herself up and get out of the life of the poor in the inner city is a great example to others who are there>>

You don’t seem willing to grant the same grace to Clarence Thomas. It’s not exactly like he came from wealth…

Besides, how deprived _was_ she? she attended a private Catholic school..had they been truly poor, would that have been a possibility? It sounds to me like she had parents who considered education to be _very_ important. That’s a beneficial difference from many of the inner city poor right there – and is due to the parents, not to Sotomayor herself. Now obviously she could have kicked against the goad and it’s to her credit that she didn’t, but I really don’t see her as “remarkable”. Her effort isn’t negligible, but let’s not canonize her on the basis of effort alone.

You sound like the teachers who want to give the F student an A because s/he “worked so hard – even if s/he _didn’t_ pass the test”

July 23, 2009 @ 1:29 pm #

she attended a private Catholic school..had they been truly poor, would that have been a possibility?

Probably, yes. The Catholic elementary schools are heavily subsidized by the archdiocese, so it’s relatively inexpensive for low-income parents to send their kids there. They do this on purpose, to serve the poor in their community and also to facilitate evangelism, as kids who have learned in a Catholic environment in their elementary years are more open to Catholic persuasion later in life.

I don’t want to dismiss the “rags-to-riches” part of the story; I just don’t think that’s sufficient basis for calling her qualified to sit on the Supreme Court, or even for calling her a person of overall good character. It does testify, as you say, to the learning ethic of her mother, and therefore of her own learning ethic.

July 24, 2009 @ 12:32 am #

Chris said:
“Let’s face it, she is a mediocrity at best, nominated by a mediocrity.”

I have no problem here…if we are all willing to say the same about Clarence Thomas.

But Phil said:
“I don’t want to dismiss the “rags-to-riches” part of the story; I just don’t think that’s sufficient basis for calling her qualified to sit on the Supreme Court”

Sorry, Phil, but she is well qualified…she may not be the best candidate, but she is qualified.

As to the ABA – do you think they would endorse someone based on political slant and completely ignore whether she will shine a horrid light on the legal profession? That doesn’t pass muster for credibility…except among your audience here, perhaps.

July 24, 2009 @ 12:37 am #

BTW Phil, you said:

“To talk about Sotomayor’s “example” and then say, “But this should have no bearing on her fitness for the Supreme Court,” is simply and utterly dishonest. Why, exactly, are we talking about Ms. Sotomayor in the first place? Do you really expect us to believe you’re bringing up her “example” in reference to anything else??? Bosh. Be honest.”

I’m so very sorry you choose to live up to your eyeballs in sour cynicism, but I was speaking the truth. I have no damned idea whether she should be the one sitting on the court…but I have a hard time sitting back and watching while nobody mentions her life story at all…sorry guys, the story is better than that of most other candidates.

Of course, she could be an utter moron with a great background story. Only, she isn’t.

July 24, 2009 @ 10:38 am #

I’m so very sorry you choose to live up to your eyeballs in sour cynicism, but I was speaking the truth.

I don’t live in sour cynicism, but I still don’t entirely believe you. You brought it up in a post explaining your support for her candidacy; I think you should admit that it contributes to your support for her candidacy.

The statistics showing the rates of crime, pregnancy, and dropping out among those who were raised by a single parent are alarming, but none of them are 100%. I’ve worked among young people who have successfully navigated these waters. It’s praiseworthy, and I did offer my agreement that that part of the story is praiseworthy; but it’s not so very unusual. For my part, I’m more impressed with the rise to the level of Circuit Court judge; that’s a high position regardless of where one started.

I have no problem here…if we are all willing to say the same about Clarence Thomas.

We’re not willing to say the same about Clarence Thomas because Clarence Thomas is not a mediocrity. The only people you’ll find calling his legal mind “mediocre” are progressives; and when you hear such criticism coming solely from one side of the aisle, you should suspect partisanship. These same people call Antonin Scalia, one of the finest legal minds of the century, dishonest. They’re just spouting their bias. If you can find me a couple of more conservative jurists who agree that Thomas’ legal mind is mediocre, I’ll begin to take the charges more seriously.

I’ve read only a handful of his decisions, but the ones I’ve read are free of the sort of shuffling and waffling I read in Breyer’s, Souter’s, and Kennedy’s decisions when I read theirs. Thomas strikes me as a man who knows what he thinks, and who thinks in a straight line. From where I sit, he’s not the brightest of the 9, but he’s far from being the least bright.

As to the ABA – do you think they would endorse someone based on political slant and completely ignore whether she will shine a horrid light on the legal profession?

I don’t think the ABA would endorse someone they knew to be a crook or flat-out incompetent, but that just shows that they discriminate in which improper behavior they’ll countenance. I do think the conduct of a judge who makes law from the bench, regardless of their other qualifications, shines a horrid light on the legal profession; and yes, the ABA endorses this conduct. As I said, she was chosen because she’s an ideological clone to the President (primary criterion), and because her credentials are sufficient to get by the Senate (contingent criterion). I suspect the ABA’s reasoning is not much different from that. “Sufficient to get by the Senate” probably denotes about a .275 hitter (to make a baseball analogy), which is not bad for a major league hitter; but you’d think the folks getting appointed to the Supreme Court might be expected to hit well above .300.

That doesn’t pass muster for credibility…except among your audience here, perhaps.

Insulting me is one thing, but if you start insulting my guests, you may leave.

July 24, 2009 @ 10:51 am #

Tell me, darkhorse, considering that she is an appeals judge already, is there_anything_ that you think would cause the ABA to deny her a recommendation?

Do you know _anyone_ who is a current member of a state bar and has been nominated for a position to any Federal judgeship who has been denied a recommendation?

In other words – do you know what their standards are?

July 24, 2009 @ 11:56 am #

Phil said:
“I don’t live in sour cynicism, but I still don’t entirely believe you. You brought it up in a post explaining your support for her candidacy; I think you should admit that it contributes to your support for her candidacy.”

Here is the litmus test for your cynicism, Phil – quote a single word I said where I support her as a candidate. Constitutionally she is qualified, she has a pretty inspiring rags-to-riches story, but that’s all I know at the moment.

July 25, 2009 @ 1:30 pm #

darkhorse challenges:

Here is the litmus test for your cynicism, Phil – quote a single word I said where I support her as a candidate.

Here’s what I think fits that description:

I make no representations whatsoever that I am arguing that she deserves a place on the Supreme Court. I will let the Bar Association’s resounding recommendation speak to that.

While you state that you’re not arguing that she deserves a place on the court, the second sentence would be interpreted by any casual observer as meaning “The ABA endorsed her, and not only is that good enough for me, that should be good enough for anybody.” Note, especially, the adjective “resounding.” It’s as clear an endorsement of her candidacy as is humanly possible — accompanied by a denial that you’re doing it.

Your entire posture here, Jim, has been one of cowardly equivocation. You claim not to be defending her candidacy — while you’re clearly defending her candidacy. Your tactic seems to be “Don’t argue with ME, argue with the ABA.” It’s really pretty disgusting. Grow a pair and take a stand, why dontcha?

July 25, 2009 @ 11:39 pm #

Hey Phil,

I don’t pretend to know enough to support Sotomayor. I just want to pepper in the additional facts that aren’t being emphasized by you here. Her life story, her support by the ABA, etc., are not decisive arguments…but they need to go into the mix, nonetheless.

Joe gets mad at me too, when I see good evidence to consider both sides, so want to keep debate open. That’s exactly what Justice Ruth Bader-Ginsberg said about Roe vs. Wade – that it was a mistake that shut off a debate that should have kept going.

As to Thomas, the string on the back of his neck that the conservative ventriloquists held, stopping Thomas from writing any of his own opinions for so much time, sealed the deal for me on mediocrity. Breyer, Souther and Kennedy were far superior to Thomas in having their own voices…especially Souter.

July 26, 2009 @ 1:06 pm #

the string on the back of his neck that the conservative ventriloquists held

Say WHAT?

Please provide the support for this frankly libelous comment.

July 26, 2009 @ 5:48 pm #

Hey Phil,

I don’t intend it to be libelous. Thomas was well qualified to be on the court (as is Sotomayor, apparently, though she may not be the best candidate), but for the very longest time CT didn’t write much by way of opinions, and voted without disagreeing at all with Scalia/Rhenquist.

Pardon the overstatement (and don’t read too much into it)…I dare say we will see much more of an independent voice in Sotomayor. And not only just for the sake of independence, but because she is not afraid to speak as to why she believes as she does (outside of the ridiculously confined senate hearings).

July 29, 2009 @ 1:04 am #

” for the very longest time CT didn’t write much by way of opinions, and voted without disagreeing at all with Scalia/Rhenquist.”

Perhaps because he agreed with them?

Are you expecting Justices to disagree with each other irrespective of what the law says just to prove autonomy?

July 29, 2009 @ 10:26 am #

Nick,

Don’t misunderstand me, Clarence Thomas wouldn’t have to have disagreed to rise above mediocrity…just to write an opinion.

Check the justices that Phil complained about…Souter, Breyer, etc…and compare how many times they voiced their opinions in their first ten years or so on cases…I think you’ll find that Clarence Thomas may just as well have mailed in his vote as “Agree with Rhenquist/Scalia” every time.

I am in no way saying that he was wrong in any particular of his opinions, of course. Just that he seemed afraid to express them, in comparison to others in his position.

July 29, 2009 @ 12:29 pm #

darkhorse,

So, your standard for intellectual capacity is, if one expresses his opinion loudly and often, that makes him intellectually sound, but if he does not, then he’s intellectually weak? (By this criterion, you must think I’m the smartest man in the world.)

There are some sources I thought you were familiar with that suggest that silence is the wiser course.

Having taken that shot — which, frankly, you needed — allow me to explain the real reason for what you’re observing.

Prior to his Supreme Court appointment in 1990, Judge David Souter had been a judge on some appellate court since 1978 — 12 years. Prior to this he had worked within the state attorney general’s office in New Hampshire for 10 years, rising to Attorney General himself.

Prior to his Supreme Court appointment in 1993, Judge Stephen Breyer had served as a judge on some appellate court since 1980 — 13 years. Prior to that he was a law professor at Harvard, where he was considered an expert on administrative law, and had served within governmental legal mechanisms since the 1960s.

Prior to his Supreme Court appointment in 1991, Clarence Thomas had been a judge — somewhat unwillingly, he’d resisted the appointment — for a bit more than a year. Prior that, his only legal exposure had occurred 13 years earlier, as a private attorney for Monsanto for about 3 years, and as an assistant state attorney general for about 3 years before that, right out of college. In the interim between 1977 when he left Monsanto and 1990 when he became a judge, Thomas was a legislative aid, then an administrator within the Dept. of Education, and finally chairman of the EEOC.

The reason Thomas took his time writing legal opinions is that unlike the others, he was new to writing opinions, and frankly, new to Constitutional law. He wisely kept his opinions to himself until he felt that he knew what he was talking about. What you were watching was a legitimate learning curve.

You owe Justice Thomas an apology — and you seriously need to examine why you so readily absorbed and REPEATED AS THOUGH TRUE a vicious, defamatory meme that is a favorite of the hard left in America, and that appears to many of us to be thoroughly racist.

July 30, 2009 @ 8:12 am #

Oh Gawd, Phil…I thought only the liberals were talking about race…LMAO!!!!

Seriously, you were very right about the history you gave on Souter, Breyer and Thomas. But your argument seems to cement the fact that Thomas was miserably mediocre for a choice for the bench.

Thomas did choose a wise course in not giving opinions early…because he was just that, a mediocre choice. I did NOT say he was stupid, neither did I say he was wrong in his opinions. Your flat out lying and continued association of me with the hard left, because I’m not a lock-step lambie for the right, is just a miserable dishonesty.

July 30, 2009 @ 8:34 am #

In fact, your argument says, right on its face, that Clarence Thomas was not chosen for his jurisprudence (he had very little). On what basis was he chosen then? I can only think of a couple more choices…neither one of them very flattering to those who chose his nomination.

Or am I missing something? Maybe you can argue my side for me some more and somehow try and make it look like I’m wrong…

July 30, 2009 @ 9:50 am #

Yeah, I thought you might take this tack, but seriously, I thought you were more honest than that. I’m very, very disappointed in you, Jim.

You’re not missing something, you’re pretending not to know something that I think you know perfectly well. You’re intelligent enough to understand the difference between “inexperienced” and “mediocre.” Please stop pretending that you’re not. Please stop pretending that there is no difference.

Here’s a link to the list of Supreme Court justices who were not judges of any sort before they were confirmed to the Court. The list includes some of the most notable judges in history, including Felix Frankfurter, Joseph Story, John Harlan, Lewis Brandeis, Roger Taney, and William O. Douglas. None of them had experience when they began, and had to learn on the job. That takes time. If you know anything about the history of the court, you can see from that list that there is no necessary correlation between “inexperienced at first” and the soundness or greatness of the judicial mind.

Judge Sotomayor has PLENTY of judicial experience. Those who have encountered her in that role, report that she is overbearing and not particularly bright. Despite her experience, her decisions frequently get overturned by higher courts. That suggests “mediocre.”

Judge Thomas had little judicial experience when he started, thus he was “inexperienced.” However, those who have honestly read his decisions since he gained experience, know that they are reading works of sound, legal reasoning. That is NOT “mediocre.” That is “competent.”

As to what criteria might be applied to appoint a non-jurist to the Supreme Court (I counted 66 names on that list,) historically the criteria are UNQUESTIONABLE INTEGRITY, MENTAL PROBITY, and SOUND TEMPERAMENT. Those may not be flattering to your mind, but they actually have some importance to some of us, and strike me as good criteria for selecting judges.

Get it now?

Again — you owe Justice Thomas an apology for defaming him unfairly, and you seriously need to consider within yourself what made you swallow and repeat, as though factual (and now defend disingenuously), the defamation of a good man, defamation very likely motivated at least in part by racial hatred.

As to this:

Your flat out lying and continued association of me with the hard left, because I’m not a lock-step lambie for the right, is just a miserable dishonesty.

You can’t even read, can you? I associated your position on this matter with the left. Even if I’m wrong, that doesn’t make me a liar; that makes me wrong. But I’m not wrong — and if you’re TRULY independent in your thinking, why are you accepting DEFAMATION from the left, and then defending it with sheer nonsense? Accepting their better arguments is one thing, but this? Bah. You can’t be serious.

I also need to point out that the confusion between “disagree” and “lie” is very, very common from leftists, and seldom heard from the right. So you’re behaving like one of them in this instance, too.

I’m not lying, Jim, I’m simply telling you what you look and sound like from where I sit. How can I possibly be lying about my perceptions? Are you telling me that I’m NOT PERCEIVING what I claim to perceive? How could you possibly know it if I were?

Methinks thou dost protest too much. You’ve got some personal weight on proving that you’re not in any way a creature of the Left. Why is that? (And “because it’s true” doesn’t answer the question. You’re freaking out here. Why?)

July 30, 2009 @ 3:16 pm #

Phil,

Pardon me, in my travels I often forget the subtle game you’re playing here.

I call your consistent association of me with the Left “dishonest”, because you have claimed to know otherwise, knowing me as a person. Do what you need to polarize here and keep the blog going. I’ll even pretend to be someone I’m not if it helps.

As to this: “Despite her experience, her decisions frequently get overturned by higher courts. That suggests “mediocre.””

Would you like to disavow this misleading statement? According to Newsweek’s FactCheck (easily available to you:

“Of the majority opinions that Judge Sonia Sotomayor has authored since becoming an appellate judge in 1998, three of her appellate opinions have been overturned by the Supreme Court.

Our search for appellate opinions by Sotomayor on the LexisNexis database returned 232 cases. That’s a reversal rate of 1.3 percent.

But only five of her decisions have been reviewed by the justices. Using five as a denominator, the rate comes out to 60 percent.

In any case, 60 percent of the cases the Supreme Court has reviewed is not a particularly high number. In any given term, the Supreme Court normally reverses a higher percentage of the cases it hears. During its 2006-2007 term, for instance, the Court reversed or vacated (which, for our purposes here, mean the same thing) 68 percent of the cases before it. The rate was 73.6 percent the previous term.”

It’s a very thorough article: http://www.newsweek.com/id/199955

July 30, 2009 @ 10:01 pm #

I call out what appears to me to be a leftist meme, and that’s dishonest?

Whatever, darkhorse. (sigh)

Clarence Thomas is not mediocre, and never was. He WAS inexperienced. If you want to play with words, you can say he WAS mediocre before he gained experience. That’s actually defensible, though I think it’s inaccurate. But that’s not what you said.

Regarding “disavowing,” I don’t need to do that. If I’m wrong, I’ll simply say “I was wrong.” It happens. But I do love the way it becomes a moral responsibility for me to check every source you or your buddy Joe happens to have checked, and I’m somehow “dishonest” if I haven’t seen precisely the argument you’ve seen. Talk about little control games…

Regarding the Newsweek article, a couple of points:

1) Due to the small sample size, there’s no statistically valid difference between her reversal rate and the Court’s average reversal rate. That makes her performance average. One would hope that appointments to the Supreme Court would focus on above-average judges. I’m willing to say that this is not a huge red flag (again, the sample size is minuscule), but I do think that her performance being average supports the claim that Sotomayor is not a stellar pick for the Supreme Court.

2) The circuit court votes in panels of 3 or more. It would seem more relevant to me to examine the cases on which she VOTED and the opinions on which she CONCURRED, and how the Court viewed the positions the court took. I have not been able to find that analysis yet; the Newsweek article defers because it’s too much work. I note that the Ricci v DiStephano case, in which her role indicates something that I consider should be of great concern to us, is not reflected in the “reversal rate” discussion because nobody knows if she wrote the brief opinion in that case.

3) According to the Newsweek article, Rush Limbaugh pointed out that her reversal rate was 80%. That’s wrong, in part because in Knight v Commissioner her decision was upheld — but the Supreme Court did find that her legal reasoning was flawed, so in fact, the Supremes did find that her decision was unsound in 4 out of 5 cases she authored that they reviewed. Limbaugh further points out that in three cases, the Court found that her interpretation of the statute was faulty. I’d have to read the cases to see if the statute was easy or difficult to decipher, but the pattern involving statute interpretation does indicate something that the Senate panel ought to examine more closely.

I’m standing by my positions, which I believe I have documented amply. Sotomayor does not seem outstanding as a jurist. It appears to me that the reason she’s being considered for a bench position on the Supreme Court is ideological first and foremost, and that the only consideration given to her quality as a judge was whether she’d be able to pass a minimum standard. Clarence Thomas strikes me as a man of strong intellect and sound moral character, and I don’t see any good reason to consider him “mediocre” as a judge. There’s a plausible case to be made that his early years on the Court were weak due to inexperience; if you want to call those years “mediocre performance,” I’m not going to quibble (though I disagree with your wording), but he’s clearly not in that category today, so the comparison between Sotomayor and Thomas is inappropriate.

July 31, 2009 @ 12:22 am #

Aahhh, reaching (close to) concensus…

Now writing from Orlando…started the day in Spokane…wrote my last post from Las Vegas : )

I checked myself, and I don’t think I was finding my source about Thomas and his years of silence from Leftists…I think it was actually from legal journals that Joe was studying at the time.

I fully admit they could have been leftist, but here’s a good question I think – how did the other non-jurist appointees do in a similar time frame?

But we can move on. I apologize in my frenzied travel-writing for causing your sigh. I wonder, do you have a couple sources handy for the Leftist leaning of the ABA?

Thanks.

July 31, 2009 @ 12:33 am #

Another reason I ask about the ABA is:

Of the five sitting Supreme Court Justices whose nominations fall within that period from John Roberts back to Clarence Thomas, only Thomas didn’t get a “well qualified” rating (he received a “qualified”).

This included Alito, Bader-Ginsberg and Stephen Breyer. It doesn’t appear the rating is based on politics.

July 31, 2009 @ 9:08 am #

A Northwestern University study in 2001 commissioned by ABA Watch showed that in ABA ratings of non-jurist candidates for judgeships during the Clinton and Bush presidencies, political party of the appointing President was by far the strongest variable predicting the outcome of the rating. The study considered the presence on the candidates’ resumes of experience in private legal practice, experience as a government lawyer, clerkship with a sitting judge, having published in a college law review, having attended a Top 10 law school, and having had some prior judicial experience. Candidates having at least surface similarity in those categories had wildly different ratings from the ABA; the variable that best predicted whether they’d receive “Well Qualified” rating or not was, were they nominated by Clinton, or were they nominated by Bush?

“Controlling for credentials, Clinton nominees have more than 10 times better odds of getting a unanimous well-qualified rating than similarly credentialed Bush appointees, Lengren wrote. “Just being nominated by Clinton instead of Bush is a stronger positive variable than any other credential or than all other credentials put together.

“The process for Bush nominees was substantially objective,” he wrote. “The process for Clinton nominees was almost entirely subjective.”

You can read the article in ABA Watch discussing the outcome of the study here.

The stark disparity between the ABA ratings for Clinton-appointed and Bush-appointed non-jurist candidates, did not show up in their ratings of sitting judges. Apparently it only occurred, in this study, when they subjectively assessed the character of the candidates. This would explain the ABA’s positive ratings for Alito and Roberts, but their less enthusiastic rating of Thomas.

If you’re wondering how this happens, combine the fact that 10 of the 15 members of the nomination evaluation committee in the ABA are significant donors to the Democratic party, with this description of how they evaluate non-jurists who are being considered for judgeship:

…the ABA states that the Committee “considers the prospective nominee’s compassion, decisiveness, openmindedness, sensitivity, courtesy, patience, freedom from bias, and commitment to equal justice.”

Recall how liberals routinely assign the virtues “compassion,” “openmindedness,” and “commitment to equal justice” to themselves entirely on a political basis — those on their side exhibit those qualities simply by virtue of taking the Democrats’ positions, those on the opponents side exhibit vice simply by virtue of taking the Republicans’ positions. I’ve written more than once about the corrosive damage done by confusing political imperatives with moral imperatives; it justifies totalitarianism along political lines, and closes off any possibility of communication. That’s what’s going on here; the ABA, being mostly Democrats, sees “D” next to the name and assumes “open-minded, compassionate, unbiased,” and sees “R” next to the name and assumes “closed-minded, selfish, bigoted.” Unbiased assessment? Heh.

For a decent, brief, not-too-detailed general discussion of the case for claiming the ABA judge ratings show political bias, read this summary from the Center for Individual Freedom.

I need to point out that I found these articles using a common search engine, and it took me all of about 5 seconds to produce the list of articles. You and Joe both seem to think that when you do this and I haven’t, it reflects some sort of bias on me. Please reconsider in the light of this exchange: what it indicates is something simple like the urgency of the topic in your mind, and the urgency of other matters pressing on you at that moment. A five-second search in google or equivalent actually represents a half-hour research project, which is an eternity for a busy man. Yes, this does reflect individual biases — in all of us, including you and Joe — but it is not an indication of some deep-seated unwillingness to face the truth, which is what the two of you mooks CONTINUALLY accuse me of.

It’s really f***ing irritating, Jim, because in my heart, I don’t think,I f***ing KNOW, that I’m more objective than either one of you. You don’t know my personal history on allowing the thinking of opponents to shape my thinking, but the truth is, my entire intellectual journey consists of just the sort of exercise you guys seem to think I’m not capable of. Your basis for your claim, incredibly, is that my thinking is consistently conservative. Joe’s thinking is consistently progressive, but somehow that doesn’t register in either of you as indicating bias; only consistent conservative thinking shows that. But that’s not a biased position, in your minds, and in your particular case, you claim it’s not sufficient reason to say you’re heavily influenced by progressivism.

“Consistently left, no bias; consistently right, fully biased; this is an unbiased assessment.” Read that sentence over, three times, and then tell me I’m not completely justified calling the both of you too biased to think straight. Good grief…

July 31, 2009 @ 10:57 am #

darkhorse –

You might actually want to read this article from the NYT as well, as it comes from the left. Even the Times admits that the ABA routinely favors liberal causes, but it goes on from there to evaluate whether or not it favors liberal judges in its evaluations. So far, at least 2 studies conducted during the 21st century suggest that they do, although there is — naturally enough — criticism of those studies.

July 31, 2009 @ 11:00 am #

I think it was actually from legal journals that Joe was studying at the time.

Did you happen to check up on the political leanings of the authors in those legal journals?

July 31, 2009 @ 9:06 pm #

WOW…wow…

“…but the truth is, my entire intellectual journey consists of just the sort of exercise you guys seem to think I’m not capable of.”

No, that is false. Your are fully capable, and just like the best of us, you wilfully choose to use it at some times, and not at others.

And, no, you never asked me whether I thought Joe was consistently biased. But, since he is not here, I was not addressing him.

August 1, 2009 @ 4:59 am #

And, no, you never asked me whether I thought Joe was consistently biased.

Jim, you’ve repeatedly represented the man as your model for objective thought.

you wilfully choose to use it at some times, and not at others.

Undoubtedly. But every time you or Joe tell me that I’ve chosen not to engage contrary thoughts objectively, I, who know best how I’ve arrived at my conclusions, know perfectly well that I have. So what reason do I have to accept your assessment of my thinking processes?

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