Comments on FiveThirtyEight: Politics Done Right: Obama, Sotomayor and Affirmative Action

If support for affirmative action is so popular, w...

2009-07-02T17:59:38.806-04:00

If support for affirmative action is so popular, why have most of Ward Connerly's efforts to eliminate it been so popular even in blue states? Washington Initiative 200, Michigan Propsal 2, etc.? These polls with pro/con arguments tend to change people's responses.

Scalia has explicitly denied being a strict constr...

2009-07-01T13:35:06.725-04:00

Scalia has explicitly denied being a strict constructionist. It is Thomas who really seems to take textualism seriously and lets it take him places that as a matter of policy he would prefer not to go.

mclever said... Mike in Maryland, Do you have a s...

2009-07-01T15:34:34.186-04:00

mclever said...
Mike in Maryland,

Do you have a summary of Nina Totenberg's analysis? or a transcript? I'd appreciate being able to read it.

Thx

I don't do transcripts on a usual basis, and I couldn't find one for this segment (although, since I'm not your research monkey, I didn't look very hard).

The link I put in the post goes directly to the video. Any browser from the last 5 years (or more) will allow you to view the video.

Again, that link is:
http://www.msnbc.msn.com/id/26315908/#31639480

Mike in Maryland

My Blogger ID is http://www.blogger.com/profile/02848893412251095965

What untold damage? I don't understand why liberal...

2009-07-01T16:02:15.630-04:00

What untold damage? I don't understand why liberals keep asserting that as if its some sort of slam dunk fact.

Well, they have already damaged themselves severely with a large and quickly growing constituency: Hispanics.

Not because they oppose her nomination, but because they have been extremely racist in the way they going about it.

If they have rational and intellectual arguments against it, that would be one, but all they are doing is spewing thinly-veiled racism in their "arguments".

If she were incompetent like Harriet Miers they would have an easier and safer time of shooting down the nomination.

She is not so all they have is racism and fear to use, and that will cost them dearly.

The white protestant establishment is the minority...

2009-07-01T12:13:47.401-04:00

The white protestant establishment is the minority rightwingnut religious lobby. Oh, I must be wrong....it is impossible for a black catholic to represent the white protestant minority.....like Roy Cohen was not gay, or that there were no Jewish Nazis....c'mon, these are concepts not identities....people can embrace completely antithetical concepts.

Thats what makes them so dangerous.....yes we have a black president....the nation was so DESPERATE for change that even rascists voted for Obama. I remember pollers being told by people they called that they were voting for "the nigger"....how desperate they must have been to vote against their prejudice....but they are still rascists...

He has abandoned his experience in life, he has ab...

2009-07-01T12:05:42.251-04:00

He has abandoned his experience in life, he has abandoned, his fellow blacks, he has abandoned all the people that come to seek Constitutional protection from the US Constitution. He is part and parcel of the white Protestant establishment.

What the hell is the white protestant establishment? In case you've been asleep for the last several months, we have a black President now. Clarence Thomas himself is a very devout Catholic.

Grog "This is a good example of how the left has t...

2009-07-01T10:49:24.951-04:00

Grog "This is a good example of how the left has tried to destroy with vile and hatred every conservative minority or woman on the right in the past 20 years. "

As a former very active CONSERVATIVE I can tell you that Clarence Thomas is NOT a conservative, he is a rightwing reactioary. He has abandoned his experience in life, he has abandoned, his fellow blacks, he has abandoned all the people that come to seek Constitutional protection from the US Constitution. He is part and parcel of the white Protestant establishment. If the right had its way, black people would still be waiting for voting rights and still entrenched in the back of the bus. Your point about Byrd et al ignores the historical fact that the rascist Democrats became rascist Republicans in the Dixiecrat break.
I confess that as a young Goldwater supporter I was against the 1964 Civil Rights Act, intellectually, but my emotions told me it was the right thing to do. As a middle class white who harbored no ill against blacks, I was happy to let states rights and conservative principles override what was a law that must be done. History has proven the value, why doesn't the right ever get it??? If ANYONE should get it is it Clarence TOM!

Mike in Maryland, Do you have a summary of Nina ...

2009-07-01T09:42:36.115-04:00

Mike in Maryland,

Do you have a summary of Nina Totenberg's analysis? or a transcript? I'd appreciate being able to read it.

Thx

This pseudo debate over how strictly Sotomayor fol...

2009-07-01T08:57:03.133-04:00

This pseudo debate over how strictly Sotomayor follows the Constitution ignores a bigger point - issues only get to the Supreme Court when there is a genuine dispute among learned authorities over what the heck the Constitution means. Shockingly enough, given these splits of view, the Supreme Court is rarely united in its view of how an issue should be resolved.

Also, there is no such thing as a truly "strict" constructionist or one who adheres to precedent without "activism". The Federalist Papers themselves admit that the Constitution was open to interpretation, just like any law, and that the judiciary would have to apply it in the context of disputes that arose over its meaning. Marbury v Madison is the most activist case of all time (allowing the Court to not just interpret the law but strike down what it finds are unconstitional acts) but no member of the current Court would give up that power. While some like to think that the power of review and interpretation only applies until there's a ruling on the issue at some time, no member of the current Court blindly assumes precedent is always binding, either. That's why Roe v. Wade is still analyzed in the context of various challenges, 30+ years after the ruling.

Let's take the guy people hold up as "strict" as an example. Scalia gets to call himself a "textualist" because he tends to use scraps of text as the starting point for his arguments. However, he often shears these out of context, then adds on layers of contstruction that aren't obvious from the text, to arrive at a conclusion that suits his ends. In doing so, he has shown himself more than willing to engage in "activism" in the sense of overturning pretty clear Congressional intent and established precedent, especially in the areas of personal liberties and government power. It is an approach that has a very simple appeal to people who want to think the world truly is black and white, all evidence of gray to the contrary notwithstanding. But its no more "strict" or less doctrainaire than anyone else on the court - it can be twisted in many ways. Indeed, on many issues his constructions buck hundreds of years of precedent and mainstream interpretations of the same text, leaving him to write incindiary dissents.

This approach can be just as or more damaging than anything that can be laid at the feet of so-called "activism". It can be blamed, in part, for the nightmare of the post September 11, 2001 actions of Bush in domestic spying and prisoner abuse. For example, Scalia's a champion of the "unitary executive" theory, which holds that anything arguably "executive" has to be exercised by the President with zero interference or further instruction by Congress. This is derived from a line in Article II, all the ways executive power is hedged and contained in the Constitution and under intervening experience notwithstanding. This theory, coupled with the allegedly expansive powers of the commander in chief, is what led John Yoo (a Clarence Thomas/Scalia protege) to contend the 4th Amendment, among others, got thrown out the window on September 11 and that nothing could really stop us from doing whatever we wanted to people in Gitmo.

Ironically, the President who best fits this view of a unitary executive is probably Andrew Jackson, who generally thought no other branch could control his conduct (such as eliminating the Bank of the United States and removal of Native Americans to Oklahoma via the Trail of Tears). So the most "conservative" justice is really an adherent of the founder of the populist Democratic party.

Barry said: would it not follow that Clarence (Unc...

2009-07-01T07:26:46.436-04:00

Barry said:
would it not follow that Clarence (Uncle Tom) Thomas.

This is a good example of how the left has tried to destroy with vile and hatred every conservative minority or woman on the right in the past 20 years.

Since Republicans started the civil rights movement in the '60's and put Robert Byrd and the KKK out of business, the left has done everything in it's power to keep minorities and women out of the Republican party.

It always cracks me up to hear liberals calling conservatives racists.

Opus said 'Thomas is black?' -------------------- ...

2009-07-01T06:17:53.645-04:00

Opus said
'Thomas is black?'
--------------------
Only by virtue of his skin pigmentation. In all other respects, not so much. [Disclaimer- I am not saying that there is a 'black way' to behave before any of the right wingnuts jump on that little side joke!]

The point has been made already that the court was split on this judgement. So its going to be tough to make a 'shes not fit for the court because of her decision' argument. But also remember that her decision was bound by judicial precedent, something that SCOTUS could ignore. I think making a huge deal of this case in hearings is not a good move for the GOP.

I am almost left wondering if SCOTUS made the Ricci judgement to save Sotomayor and to allow her to make a reasoned explanation of her thinking on the case in her hearings, which she may have struggled to do if the case was still pending.

According to Nina Totenberg of NPR, this could be,...

2009-07-01T04:12:37.762-04:00

According to Nina Totenberg of NPR, this could be, in effect, a very limited victory for the anti-affirmative action peddlers. (I would say maybe even a Pyrrhic victory.)

See http://www.msnbc.msn.com/id/26315908/#31639480 for Nina's explanation. Her discussion begins at about 2:30, but at about 4:20 is the beginning of her explanation of the limited effect of the ruling.

Mike in Maryland

My Blogger ID is http://www.blogger.com/profile/02848893412251095965

Thomas is black?

2009-07-01T03:33:57.880-04:00

Thomas is black?

This was the SECONd time in the last month that Th...

2009-07-01T03:31:56.019-04:00

This was the SECONd time in the last month that Thomas was on the losing end of an 8-1 Scotus decision.

He's the PeteKent of the Supreme Court!

If Sotomayers confirmation is in danger because sh...

2009-07-01T03:29:21.869-04:00

If Sotomayers confirmation is in danger because she disagreed with 5 of the 9 justices, would it not follow that Clarence (Uncle Tom) Thomas should be IMPEACHED for being overruled 8-1 last week in the strip search case?

And THIS is why we can't have nice things. Are black men not allowed to be conservative, lest they be labeled "Uncle Toms?" This type of attitude is sickeningly racist. Leftists are always willing to call out racists on the right (as they should), but it's just as disgusting to insult black people who happen to vote differently from most of their peers.

Do you remember when Thomas compared his confirmation hearing to a "high-tech lynching" of "uppity blacks?" He was talking about you.

If Sotomayers confirmation is in danger because sh...

2009-07-01T03:04:14.333-04:00

@ Pragmatus I’ll bet 95 out of every 100 white gu...

2009-07-01T02:24:38.099-04:00

@ Pragmatus

I’ll bet 95 out of every 100 white guys over 60 will vote Republican in 2010.

Not as dumb as your original statement but still dumb. (I'm old enough to be your father.} You really surprise me here.

And you deny being a liberal? Stand up and be counted! (I'm an ultra-liberal and proud of it.) You disappoint me here.

July 1, 2009 2:14 AM

That's exactly what irritates me - they're trying ...

2009-07-01T02:04:32.648-04:00

That's exactly what irritates me - they're trying to have it both ways. The irony is that she's the exact opposite of a "judicial activist," as if that isn't part of the job description. She was applying the letter of the law and following a well-established precedent. If anything, the conservatives on SCOTUS were being "judicial activists."

The Republicans are deliberately twisting reality to fit their political agenda and it's should be so obvious that it's disgusting.

What happened to Sean?

2009-07-01T00:21:46.231-04:00

What happened to Sean?

Just poking in to (once again) rebut the stupidly ...

2009-07-01T00:12:29.586-04:00

Just poking in to (once again) rebut the stupidly stupid argument that liberals are somehow "loose constructionists" while conservatives supposedly strictly adhere to the constitution. Fact is, both sides are activists for their causes. Exhibit A: Scalia, posterboy for the supposed "strict constructionist" side of things, who has repeatedly voted his politics rather than the exact wording of the constitution. The problem is that the liberals lost the branding war, not that they actually act any differently than their conservative peers.

I'll give you that one. Scalia, Roberts and Alito are more socially conservative, but normally rule against expanding the role of the federal government. Clarence Thomas is probably the closest person on the court to a true libertarian.

That being said, part of the answer to this question lies in what rights you believe are granted by the Constitution. For instance, I do not believe there is a constitutional right to abortion; abortion actually infringes upon the rights of the unborn. If you are pro-choice, you believe banning abortion infringes upon the rights of the mother. Both parties to this conflict can honestly call the other a "loose constructionist."

This is exactly why the Sotomayor nomination is a good opportunity for Republicans to take a stand on an issue a lot of people will agree with (and that many aren't educated about). The Republicans can use the Sotomayor hearings to really grill her about her constitutional knowledge and ideas.

It's late, I'm rambling.

VW: wagmag - the number one news magazine for happy puppies

Just poking in to (once again) rebut the stupidly ...

2009-06-30T23:37:15.404-04:00

Leaving aside the politics. On the substance, Soto...

2009-06-30T23:35:35.860-04:00

Leaving aside the politics. On the substance, Sotomayor certainly did not get 4 of the justices agreeing with her. As has been widely noted, they all disgreed with the test she used, and agreed that the case would "normally" be sent back for reconsideration (i.e., that S. was wrong to rule as she had). What people are missing is that the majority, very unusually, did not send back the case, but actually ruled for the plantiffs. Had they just sent the case back, implying it was poorly decided, they would probably have picked up more votes.

I'm curious what people thought of the actual case. To me her decision was awful, and the case of the plantiffs airtight.

ugh. I am the ??? above. This is now my second c...

2009-06-30T23:14:52.430-04:00

ugh. I am the ??? above.

This is now my second comment on this sight...ever. Hello all.

@ Scott who said "I'm the first person to condemn ...

2009-06-30T23:12:26.461-04:00

@ Scott who said "I'm the first person to condemn racism from the right, but slavery ended 150 years ago. This generation of minorities can hardly be called victims. It's time for us, as a nation, to move on. The best way to end racial discrimination is to not discriminate based on race."

True, slavery ended over a century ago, but legalized blatant discrimination ended within some (many?) posters lifetimes. Furthermore, legalization (or not) does not necessarily change attitudes, especially of those who are past young adulthood (when attitudes are most malleable). Additionally, early socialization experiences play a large role in the development of racial attitudes. Taking all of this into account the ERA is still recent enough to NOT eradicate blatant racial animosity.

Of course, I'm not implying that attitudes have not changed. Rather attitudes have changed from blatant animosity to more modern, subtle, and carefully worded forms of racism. Further, implicit/unconscious racial bias impacts people who are or are not consciously racist (i.e. most everyone).

These are all just attitudes and don't speak to the disadvantage in the quoted passage. However recent "resume studies" have demonstrated that race (conscious and unconscious) matters in hiring decisions and interracial interactions. Other analyses suggest that home prices (one key piece of developing and maintaining wealth) in Black neighborhoods are worth less than home prices in White neighborhoods after controlling for all other relevant factors.

So, while slavery and legalized discrimination are over (for the most part) the impact of discrimination and its effect on disadvantaging minorities is still present.

Overall, however, I am sympathetic to your point. What fun would politics be without an opposition?

Robin Hanson discusses Obama's election reducing s...

2009-06-30T22:38:06.464-04:00

Robin Hanson discusses Obama's election reducing support for abortion, gun control and other such things here:
http://www.overcomingbias.com/2009/06/obamas-opportunity-cost.html

Via the Inductivist, a Pew survey on support for affirmative action:
http://pewresearch.org/pubs/1240/sotomayor-supreme-court-affirmative-action-minority-preferences

I've noted at Hopefully Anonmous' that affirmative action is an area I find hard to reconcile with my rather cynical view of politics. I recall Samuel Huntington's discussion of how a number of statewide referenda prohibiting it passed despite opposition from both political parties, universities and businesses. As he quoted one opponent "Nobody was for it except the people". But what benefit do those supporters get? The politicians publicly associate themselves with a policy unpopular with voters while businesses & universities that are normally quite competitive in grabbing the highest-scorers subject themselves to a sort of altruistic handicapping.