The Supreme Court, in a split 5-4 decision, overturned the 2nd Circuit Court of Appeals decision in Ricci, et al. v. DeStefano (you can read the decision here: http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf).
The Court held that the City of New Haven, CT. violated the Civil Rights Act when it refused to promote 20 firefighters. The firefighters in question, 19 Caucasians and 1 Hispanic, all passed a written examination given by the city to determine promotions. The city originally threw out the test and denied promotions to those who passed it out of fear that the test would run afoul of a legality called “disparate impact.” Generally, this means that something that appears neutral on its face disproportionately impacts members of a protected class[1]. The city reasoned that the test had a disparate impact since no African-Americans passed the examination. The firefighters in question challenged the city’s decision and sued. A federal District Court originally granted Summary Judgment[2] to the city on the basis that the results could be thrown out to avoid any disparate impact lawsuits. The 2nd Circuit Court of Appeals upheld the lower court in a brief statement authored by Judge Sonia Sotomayor without hearing oral arguments.
Although the final decision was close, the perspective that Judge Sotomayor failed to properly dispose of the case was unanimous. All nine Justices disagreed with the way the case was handled in the appellate court. The Supreme Court felt that a full hearing on the topic was proper and Sotomayor’s brief statement avoiding a hearing was improper for a valid Constitutional claim. Further, it seems obvious that the topic deserved legal arguments at the Circuit Court level since the Supreme Court released over 90 pages of analysis and reasoning.
This makes the 4th time in 6 cases that Sotomayor has been overturned by the Supreme Court. The unanimous agreement that her legal approach was wrong is eerily similar with yet another decision where the Supreme Court deconstructed her legal reasoning as completely incorrect. This means that in 5 of 6 cases that were appealed to, and heard by the Supreme Court, Sotomayor was on the wrong side of the Constitution and federally enacted statutes.
The nomination process is ongoing and a vote is scheduled to occur within the next month. We still have time to let our Senators know that we expect more from the Supreme Court and we will not stand for Justices to legislate from the bench. Please contact your Senator and tell them to vote “no” to Sonia Sotomayor (you can find your Senators here: http://www.senate.gov/general/contact_information/senators_cfm.cfm).
[1] Protected class is a term given to individuals in society who are part of a group that has been historically discriminated against or treated unfairly throughout the country over an extended period of time. African-Americans are an example of a protected class since they were the victims of slavery and ongoing discrimination after the Emancipation Proclamation. A few other examples of protected classes are females, the disabled, and the elderly.
[2] Summary Judgment is a legal motion which states that one party is entitled to judgment as a matter of law when there are no genuine issues of material fact. This motion is granted when the facts of a case are not in dispute; all inferences and ambiguities are to be viewed in the light most favorable to the non-moving party. The intent is to efficiently move cases through the legal system and avoid trials when possible. Judges should not grant this motion when a fact-finder, either Judge or Jury, could look at the evidence presented and conclude that one participant in the case had more compelling and weighty evidence supporting their legal arguments. It is only to be used when the facts are so one-sided as to make a trial on the evidence unnecessary.
Monday, June 29, 2009
Update: “Cap & Trade” Bill Passes the House of Representatives
The American Clean Energy and Security Act (HR 2454) (2009) narrowly passed on Friday night. The final vote tally was 219 – 212. The bill will now go to the Senate for debate and an eventual vote. As of right now, the legislation does not have enough support to pass. This presents an opportunity for everyone to call, mail, or email their respective Senators and urge them to stand firmly against this economically destructive silent tax. (You can find your Senators here: http://www.senate.gov/general/contact_information/senators_cfm.cfm)
It is important to note that 8 Republicans broke ranks and voted in favor of this law. Since this bill only passed by 7 votes, you can see how disastrous this was. If any of these individuals represent you, please voice your opinion and let them know how unhappy you are that they voted for this monstrosity. They are:
- Bono Mack (CA)
- Castle (DE)
- Kirk (IL)
- Lance (NJ)
- LoBiondo (NJ)
- McHugh (NY)
- Reichert (WA)
- Smith (NJ)
I also think it is important to inform you that 44 Democrats voted against ACES. If any of these individuals represent your Congressional district, please let them know that you are pleased with their good judgment on this topic. The representatives are:
-Altmire (PA) -Arcuri (NY) -Barrow (GA)
-Berry (AR) -Boren (OK) -Bright (AL)
-Carney (PA) -Childers (MS) -Costa (CA)
-Costello (IL) -Dahlkemper (PA) -Davis (AL)
-Davis (TN) -DeFazio (OR) -Donnelly (IN)
-Edwards (TX) -Ellsworth (IN) -Foster (IL)
-Griffith (AL) -Herseth Sandlin (SD) -Holden (PA)
-Kirkpatrick (AZ) -Kissell (NC) -Kucinich (OH)
-Marshall (GA) -Massa (NY) -Matheson (UT)
-McIntyre (NC) -Melancon (LA) -Minnick (ID)
-Mitchell (AZ) -Mollohan (WV) -Nye (VA)
-Ortiz (TX) -Pomeroy (ND) -Rahall (WV)
-Rodriguez (TX) -Ross (AK) -Salazar (CO)
-Stark (CA) -Tanner (TN) -Taylor (MS)
-Visclosky (IN) -Wilson (OH)
We still have an opportunity to demand that our voices be heard; please do not let this chance to defeat a poorly reasoned and written bill pass without voicing your concerns.
It is important to note that 8 Republicans broke ranks and voted in favor of this law. Since this bill only passed by 7 votes, you can see how disastrous this was. If any of these individuals represent you, please voice your opinion and let them know how unhappy you are that they voted for this monstrosity. They are:
- Bono Mack (CA)
- Castle (DE)
- Kirk (IL)
- Lance (NJ)
- LoBiondo (NJ)
- McHugh (NY)
- Reichert (WA)
- Smith (NJ)
I also think it is important to inform you that 44 Democrats voted against ACES. If any of these individuals represent your Congressional district, please let them know that you are pleased with their good judgment on this topic. The representatives are:
-Altmire (PA) -Arcuri (NY) -Barrow (GA)
-Berry (AR) -Boren (OK) -Bright (AL)
-Carney (PA) -Childers (MS) -Costa (CA)
-Costello (IL) -Dahlkemper (PA) -Davis (AL)
-Davis (TN) -DeFazio (OR) -Donnelly (IN)
-Edwards (TX) -Ellsworth (IN) -Foster (IL)
-Griffith (AL) -Herseth Sandlin (SD) -Holden (PA)
-Kirkpatrick (AZ) -Kissell (NC) -Kucinich (OH)
-Marshall (GA) -Massa (NY) -Matheson (UT)
-McIntyre (NC) -Melancon (LA) -Minnick (ID)
-Mitchell (AZ) -Mollohan (WV) -Nye (VA)
-Ortiz (TX) -Pomeroy (ND) -Rahall (WV)
-Rodriguez (TX) -Ross (AK) -Salazar (CO)
-Stark (CA) -Tanner (TN) -Taylor (MS)
-Visclosky (IN) -Wilson (OH)
We still have an opportunity to demand that our voices be heard; please do not let this chance to defeat a poorly reasoned and written bill pass without voicing your concerns.
Friday, June 26, 2009
Supply Chains and Cap & Trade: a High-Level Overview
The American Clean Energy and Security Act (ACES) of 2009 is a piece of legislation presented to the entire U.S. House of Representatives and set for a vote on Friday, June 26, 2009. It is more commonly referred to as “Cap and Trade.” ACES is purported to be a bill to combat so-called “climate change.” The legislation places a limit on the amount of carbon dioxide (the air we, as humans, exhale and that trees convert back into oxygen) that businesses can release into the environment. ACES does allow some carbon to be emitted; however, it requires a permit from the government. These permits have a cost that amount to a tax on production. Admittedly, the bill is more complicated, but this rudimentary explanation will serve the purpose for this discussion.
The supply chain is an economic term which simply describes the process of taking raw resources, turning them into products for the economy, and then placing those products into the hands of consumers. The purpose is to illustrate the flow of materials through the economy and to include all parties involved in bringing goods to the market. Again, this concept can get more complicated, but it is unnecessary to go into that level of detail here.
These two concepts will be interrelated if Congress passes ACES into effect and the President signs it into law. ACES will affect each level of the supply chain with a tax. The additional cost will be passed on to the next link in the chain. Capitalism functions in such a manner because the purpose of risk-taking and investment is profit. Businesses will avoid decreases in profit caused by increased costs of production or purchasing materials by passing the costs down the line. The final result of this process is an increased burden upon the consumer, who happens to be the final link in the chain.
A simple illustration demonstrates this point. Let us examine something as common as the small business dairy farmer who sends milk to the market. The farmer is the beginning of the supply chain. He has the source of the raw material, the dairy producing cows, from which the process begins. The farmer must extract the raw milk from the cows. This is typically accomplished through a harvesting machine, which is used several times a day. The machine runs on electricity. Since over 50% of electricity in this country comes from coal, it is highly probable that the electricity bill for the dairy farmer will be higher. Higher utility bills mean increased cost for the farmer. Since farmers usually have tight margins, that cost will be passed to the next participant in the supply chain. Further, the farmer has to store the harvested dairy product. Again, this requires the use of a machine, this time a refrigerated machine which also runs on electricity. He will again incur more cost.
The next step is transportation of the refrigerated product from the dairy farm to processing centers and laboratories (to test the product that is being sent to market). Transportation typically occurs by means of trucking. Trucking companies require large quantities of gasoline. The gasoline will cost more, which means that the trucking company must charge more for the service. Additionally, it is possible that the trucking company will have to purchase permits for emitting carbon dioxide (this remains unclear at this point in time). If permits are required of the company, the service charge will be further increased.
Once the product arrives at the processing plant, it must go through a series of procedures including pasteurization and homogenization. Once again, this process requires energy for the machinery and the large building which houses all of it. The processor typically packages the milk as well. This involves even more machinery and ever more electricity. The processing plant also must store the milk until the next shipment is ready to go out to the distributors. Storage of a perishable item requires refrigerated equipment that yet again runs on electricity.
A shipping company will have to again transport the product; this time the milk will be taken from the processing plant and shipped to distribution points. We will assume that there are no middle-men or warehouses and that it goes straight to your local supermarket. The shipping company, as stated previously, uses gasoline that is now more expensive and must charge more to cover the increased burden.
Once the milk arrives at the local grocer, it must be stored. The storage yet again requires the use of refrigerated coolers which run on electricity that has become more costly. The end result of all these costs is a more expensive gallon of milk for the consumer. The cost added to each layer will increase the final sales price.
When you review all of the costs passed down the chain, it becomes obvious that the ultimate burden falls upon the consumer. He pays for all of the increased costs to the farmer, the transportation from farm to processing plant, the higher energy bills of the plant, a second round of higher transportation costs, and finally the more expensive energy at the supermarket. These numbers don’t even include things like the suddenly more expensive gas used by the consumer to get to the store, the increased costs of buying machines and other supplies to run the farm and the plant, or the more expensive parts used to maintain the trucking fleet. The previous sentence’s examples are but a few of the dozens of inputs necessary to keep the supply chain functioning.
Although the explanation was simplistic, it clearly makes the point that passage of the ACES legislation will significantly impact the standard of living of the American public. To make this point stronger, think about how many products you buy weekly and look to the higher costs passed through the supply chain for each of them. The price of any one is bearable; however, the aggregate cost to the consumer becomes exponentially burdensome and oppressive. What is more disturbing is the regressive nature of the proposed law; it disproportionately saddles costs to those in society with the least available means to bear the burden. Those in government must educate the public on the cumulative effect of this bill and the impact it will have on every sector of the economy. Explaining the impact ACES will have on individuals should build a groundswell of opposition to this destructive policy. As in sports, sometimes the best offense is a good defense. In this case, an educated populace is the best defense available.
The supply chain is an economic term which simply describes the process of taking raw resources, turning them into products for the economy, and then placing those products into the hands of consumers. The purpose is to illustrate the flow of materials through the economy and to include all parties involved in bringing goods to the market. Again, this concept can get more complicated, but it is unnecessary to go into that level of detail here.
These two concepts will be interrelated if Congress passes ACES into effect and the President signs it into law. ACES will affect each level of the supply chain with a tax. The additional cost will be passed on to the next link in the chain. Capitalism functions in such a manner because the purpose of risk-taking and investment is profit. Businesses will avoid decreases in profit caused by increased costs of production or purchasing materials by passing the costs down the line. The final result of this process is an increased burden upon the consumer, who happens to be the final link in the chain.
A simple illustration demonstrates this point. Let us examine something as common as the small business dairy farmer who sends milk to the market. The farmer is the beginning of the supply chain. He has the source of the raw material, the dairy producing cows, from which the process begins. The farmer must extract the raw milk from the cows. This is typically accomplished through a harvesting machine, which is used several times a day. The machine runs on electricity. Since over 50% of electricity in this country comes from coal, it is highly probable that the electricity bill for the dairy farmer will be higher. Higher utility bills mean increased cost for the farmer. Since farmers usually have tight margins, that cost will be passed to the next participant in the supply chain. Further, the farmer has to store the harvested dairy product. Again, this requires the use of a machine, this time a refrigerated machine which also runs on electricity. He will again incur more cost.
The next step is transportation of the refrigerated product from the dairy farm to processing centers and laboratories (to test the product that is being sent to market). Transportation typically occurs by means of trucking. Trucking companies require large quantities of gasoline. The gasoline will cost more, which means that the trucking company must charge more for the service. Additionally, it is possible that the trucking company will have to purchase permits for emitting carbon dioxide (this remains unclear at this point in time). If permits are required of the company, the service charge will be further increased.
Once the product arrives at the processing plant, it must go through a series of procedures including pasteurization and homogenization. Once again, this process requires energy for the machinery and the large building which houses all of it. The processor typically packages the milk as well. This involves even more machinery and ever more electricity. The processing plant also must store the milk until the next shipment is ready to go out to the distributors. Storage of a perishable item requires refrigerated equipment that yet again runs on electricity.
A shipping company will have to again transport the product; this time the milk will be taken from the processing plant and shipped to distribution points. We will assume that there are no middle-men or warehouses and that it goes straight to your local supermarket. The shipping company, as stated previously, uses gasoline that is now more expensive and must charge more to cover the increased burden.
Once the milk arrives at the local grocer, it must be stored. The storage yet again requires the use of refrigerated coolers which run on electricity that has become more costly. The end result of all these costs is a more expensive gallon of milk for the consumer. The cost added to each layer will increase the final sales price.
When you review all of the costs passed down the chain, it becomes obvious that the ultimate burden falls upon the consumer. He pays for all of the increased costs to the farmer, the transportation from farm to processing plant, the higher energy bills of the plant, a second round of higher transportation costs, and finally the more expensive energy at the supermarket. These numbers don’t even include things like the suddenly more expensive gas used by the consumer to get to the store, the increased costs of buying machines and other supplies to run the farm and the plant, or the more expensive parts used to maintain the trucking fleet. The previous sentence’s examples are but a few of the dozens of inputs necessary to keep the supply chain functioning.
Although the explanation was simplistic, it clearly makes the point that passage of the ACES legislation will significantly impact the standard of living of the American public. To make this point stronger, think about how many products you buy weekly and look to the higher costs passed through the supply chain for each of them. The price of any one is bearable; however, the aggregate cost to the consumer becomes exponentially burdensome and oppressive. What is more disturbing is the regressive nature of the proposed law; it disproportionately saddles costs to those in society with the least available means to bear the burden. Those in government must educate the public on the cumulative effect of this bill and the impact it will have on every sector of the economy. Explaining the impact ACES will have on individuals should build a groundswell of opposition to this destructive policy. As in sports, sometimes the best offense is a good defense. In this case, an educated populace is the best defense available.
A Letter to Congress on "Cap & Trade"
Congresswoman Myrick,
As a concerned citizen in your Congressional District, I implore you to stand firm and vote against the American Clean Energy and Security Act of 2009 (ACES) that is currently pending in the House. ACES is a horrific piece of legislation, based upon science that is questionable at best, which will restrict the growth of the American economy like no law in our nation’s history.
As you are probably well aware, ACES will be a burden on all Americans. It amounts to the largest tax hike in US history and will affect rich and poor alike. A tax on carbon does not give preferential treatment based upon bank accounts; it pillages from everyone. Depending on the source of the numbers (and omitting the latest statistics from a faulty and incomplete CBO report that the Heritage foundation equates to an accounting analysis or cash-flow analysis), a family of four can expect to see energy costs increase up to 90% within the next two decades. This increase in energy bills is deliberate and meant to curb the use of carbon. These numbers also fail to consider the costs that will be imposed through the supply chain of everything manufactured and purchased in this country. It also fails to consider the lost production, lost jobs, and restricted growth of the economy which will place far greater burdens on everyone from single parents to small business owners to large international corporations. This is unfathomable, even more so when we are looking at tens of trillions of dollars in unfunded liabilities and a national debt that is set to grow every single year for at least the next decade. Americans are hurting right now and are looking to save every penny they can. How is this tax bomb justified considering these factors?
The science behind this push to turn back the clock on American growth and industry makes the costs and the purpose behind ACES even more suspect. The EPA’s own numbers show that the effect on the environment will be about .2 degrees Celsius by the year 2100. Two-tenths of one degree! Our global temperature fluctuates by that number or more on a yearly basis. The so-called benefits are more dubious when you consider that other nations will not be bound by such punitive restraints. American business and consumers will have a distinct disadvantage in the global economy. Even if the entire planet bought into this modern day mysticism, the UN reports that global temperatures would only change by .4 degrees Celsius. All of these numbers assume best-case scenarios which are highly unlikely to occur. It is bordering on insanity to decrease the standard of living of our society for such a nominal number.
I am well aware that the Democrats outnumber Republicans in the House by a significant margin and that at times it may seem like you are the proverbial lone voice in the wilderness. You are not alone. Millions of Americans will stand firmly behind you and unite once again for economic growth, job creation, prosperity, and the freedom to work and live free from oppressive government taxes. I also want to appeal to you as a mother and grandmother and ask you to fight not only for yourself but for your children and grandchildren. It is unfair, and I might add un-American, to saddle future generations with debts and burdens that we ourselves did not have to bear. Think of them when you speak out against this bill and think of the millions of American children just like them that will face the prospects of a world where they will be inhibited from achieving the level of success we were allowed to reach.
Please vote against ACES and rally your colleagues in what will be one of the most important political battles of our lifetime.
Respectfully,
PoliSpice
A Concerned 9th District Voter
As a concerned citizen in your Congressional District, I implore you to stand firm and vote against the American Clean Energy and Security Act of 2009 (ACES) that is currently pending in the House. ACES is a horrific piece of legislation, based upon science that is questionable at best, which will restrict the growth of the American economy like no law in our nation’s history.
As you are probably well aware, ACES will be a burden on all Americans. It amounts to the largest tax hike in US history and will affect rich and poor alike. A tax on carbon does not give preferential treatment based upon bank accounts; it pillages from everyone. Depending on the source of the numbers (and omitting the latest statistics from a faulty and incomplete CBO report that the Heritage foundation equates to an accounting analysis or cash-flow analysis), a family of four can expect to see energy costs increase up to 90% within the next two decades. This increase in energy bills is deliberate and meant to curb the use of carbon. These numbers also fail to consider the costs that will be imposed through the supply chain of everything manufactured and purchased in this country. It also fails to consider the lost production, lost jobs, and restricted growth of the economy which will place far greater burdens on everyone from single parents to small business owners to large international corporations. This is unfathomable, even more so when we are looking at tens of trillions of dollars in unfunded liabilities and a national debt that is set to grow every single year for at least the next decade. Americans are hurting right now and are looking to save every penny they can. How is this tax bomb justified considering these factors?
The science behind this push to turn back the clock on American growth and industry makes the costs and the purpose behind ACES even more suspect. The EPA’s own numbers show that the effect on the environment will be about .2 degrees Celsius by the year 2100. Two-tenths of one degree! Our global temperature fluctuates by that number or more on a yearly basis. The so-called benefits are more dubious when you consider that other nations will not be bound by such punitive restraints. American business and consumers will have a distinct disadvantage in the global economy. Even if the entire planet bought into this modern day mysticism, the UN reports that global temperatures would only change by .4 degrees Celsius. All of these numbers assume best-case scenarios which are highly unlikely to occur. It is bordering on insanity to decrease the standard of living of our society for such a nominal number.
I am well aware that the Democrats outnumber Republicans in the House by a significant margin and that at times it may seem like you are the proverbial lone voice in the wilderness. You are not alone. Millions of Americans will stand firmly behind you and unite once again for economic growth, job creation, prosperity, and the freedom to work and live free from oppressive government taxes. I also want to appeal to you as a mother and grandmother and ask you to fight not only for yourself but for your children and grandchildren. It is unfair, and I might add un-American, to saddle future generations with debts and burdens that we ourselves did not have to bear. Think of them when you speak out against this bill and think of the millions of American children just like them that will face the prospects of a world where they will be inhibited from achieving the level of success we were allowed to reach.
Please vote against ACES and rally your colleagues in what will be one of the most important political battles of our lifetime.
Respectfully,
PoliSpice
A Concerned 9th District Voter
Wednesday, May 27, 2009
Sotomayor Should Not Be Confirmed by the US Senate
President Obama’s nomination of 2nd Circuit Court of Appeals Judge Sonia Sotomayor should be met with resistance by those on both sides of the aisle in the US Senate. It is vital that those charged with the Constitutional mandate to consent to judicial appointments review the quality of the candidate and resist getting caught up in what the media, and the Obama administration, will paint as an historic event. The fact that the first Hispanic woman has been nominated does not release Senators from performing their enumerated power of approving judges for the Supreme Court.
Three separate issues immediately raise red flags to carefully examine during the Senate confirmation hearings. First, Sotomayor believes that judges make policy and create law. Second, she emphasizes that factors other than impartially applying law determines the outcome of cases. Finally, she fails to meet the high standards required of nominees for the Supreme Court and should be questioned on merit.
“where policy is made”
The Constitution clearly differentiates between the branches of government and explicitly enumerates the powers granted to each. It is in this “separation of powers” that much of the genius of the Founding Fathers is exhibited.
Article I of the Constitution explains that the legislature is tasked with making law, while Article III explains that the judiciary is limited to interpreting and applying the law. This is an important distinction and one that is meant to protect the citizenry. Members of the legislature are elected by the people and may be voted out of office for making, and passing, laws that are unpopular or ineffective. This is the mechanism by which the people control those representing their interests.
There is no such manner to remove judges. Judges are unelected officials, appointed for life, who can only be removed for egregious behavior through a lengthy impeachment process. The Founders did not want unelected officials dictating policy to the masses and imposing rules and laws without recourse. This was a chief component of the revolt which led to the creation of our Republic.
Herein lies the problem with Sotomayor’s judicial philosophy. She believes that judges, through the legal system, make policy and create laws. Her support for this can be found in video footage on any search engine (http://www.youtube.com/watch?v=OfC99LrrM2Q). Apparently, her education, years as a practicing attorney, and time as a judge have failed to introduce her to the text of the Constitution. Either that or she values her own intellect and experiences over the Founding legal documents which she has taken an oath to uphold and protect.
It is essential that judges apply the law as it is written by the legislative branch, unless the language of that law is deemed unconstitutional. In those rare instances where it is found to violate the text and intent of the Constitution, the specific law should be held null and void and the legislature should be forced to write better law. One of the most important values in courts applying law, and not creating it, is consistency and notice. The populace should know the law ahead of time so as to act in accordance with it. Judicial fiats remove this transparency and create chaos as citizens scatter in an attempt to comply with an ever-moving target.
“physiological differences”
As we all know, Lady Justice is blind. Statues of her show a cloth band covering her eyes as she balances the scales of justice. This is portrayed in accordance with the belief “that all men are created equal,” which was so eloquently espoused in the Declaration of Independence. The courts are intended to be the great equalizer, where any citizen can take a grievance and be heard on the evidence of the case and not judged by the physical characteristics he displays or the religious beliefs he holds dear.
Impartiality is the ideal and the measuring stick on which we determine the quality of the judge. Participants in the legal system desire to be treated the same as the person before them. Sotomayor does not hold these same virtues.
In her view, this impartiality is an ideal which can not be reached, and which she believes should not be sought. Although she claims that identity politics should not be practiced, Sotomayor believes that there are “inherent physiological or cultural differences” which influence legal reasoning and determine legal outcomes. The differences, which are inherent in each of us, mean that judges are incapable of always reaching the same conclusion.
She even went so far as to “hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion that a white male who hasn’t lived that life” (You can find the entire text of her speech in the La Raza Law Journal in 2002 or at http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html). Surely she does not mean to say that white male judges are inferior or reach inferior conclusions.
These comments appear to fly in the face of the feminist and civil rights movements that have argued, successfully, that gender and ethnicity do not determine outcome. They go so far as to come across as sexist and racist (imagine a white male giving a similar statement if you doubt the validity of this comment).
Regardless, it seems illogical and inherently wrong to confirm someone that places such emphasis on gender and racial make-up rather than solely looking to the laws she is sworn to apply. Do these comments and beliefs instill confidence that judicial decisions will not weigh uncontrollable factors such as genetics when determining winners and losers in legal cases?
Merit
The US Supreme Court is the most prestigious court in the land. Seats have traditionally been reserved for the most qualified jurists and even some of those with great support fall short when held to the high standards the position requires. The Senate needs to carefully evaluate Sotomayor and determine whether she can clear this high hurdle and be seated next to some of the greatest legal minds of our generation.
Many will immediately point to her educational credentials. She graduated with high honors from Princeton, was accepted to Yale Law and finished at the top of her class. These are impressive feats and show dedication and intelligence. Supporters will also discuss her time as a practicing attorney, her appointment to the US District Court, and her eventual rise to the 2nd Circuit Court as evidence of her vast experience and understanding of how the law really works. These are all valid arguments but fail to paint the entire picture of her as a jurist.
It is one thing to be a good student or trial attorney or trial judge, it is an altogether distinct task to work as an appellate court judge. The appellate court judge must review arguments based upon the Constitution, procedural rules, and novel concepts not yet agreed upon by the courts. The Circuit Courts may take these appealed District Court cases and hear arguments. In some instances, their decisions get appealed to the US Supreme Court for a final opinion.
This makes the Supreme Court the final arbiter of legal decisions on the federal level. Sotomayor has had six cases get appealed to the highest court in the land. Three of those decisions were overturned. One was upheld, though the Court’s opinion stated that her reasoning “flies in the face of statutory language.” In other words, she got to the right conclusion but took the wrong path to get there. A fifth case was upheld and there does not appear to be any problem with her analysis. The final case is in front of the Court now and is likely to be reversed (the case deals with the discrimination claim made by several white firefighters against the city of New Haven, CT). Taking the likely reversal in front of the Court now, she has had two of every three decisions reversed. This means that she was right only once in every three attempts and it appears that one of those three was by pure chance.
Merit dictates that Sotomayor is not fit to serve on the US Supreme Court. Failing to reach the proper conclusion 66% of the time is a failure and is a record not worthy of the highest court in the land; this becomes even more apparent when taking her other faults into consideration.
Republicans and Democrats alike need to thoroughly examine this nominee, her judicial philosophy, her impartiality, and her success as an appellate judge. During the confirmation process, each Senator must analyze the jurist and look beyond the accompanying distractions. They must ask themselves whether they value the Constitution, our Founding documents and principles, the progress we have made in putting race and gender behind us, and the notion that only those candidates of exceptional intellect and judgment will be confirmed to the highest Court. In doing so, our elected representatives can demonstrate that they truly value the virtues they spend so much time espousing in front of cameras and deny this nominee her appointment.
Three separate issues immediately raise red flags to carefully examine during the Senate confirmation hearings. First, Sotomayor believes that judges make policy and create law. Second, she emphasizes that factors other than impartially applying law determines the outcome of cases. Finally, she fails to meet the high standards required of nominees for the Supreme Court and should be questioned on merit.
“where policy is made”
The Constitution clearly differentiates between the branches of government and explicitly enumerates the powers granted to each. It is in this “separation of powers” that much of the genius of the Founding Fathers is exhibited.
Article I of the Constitution explains that the legislature is tasked with making law, while Article III explains that the judiciary is limited to interpreting and applying the law. This is an important distinction and one that is meant to protect the citizenry. Members of the legislature are elected by the people and may be voted out of office for making, and passing, laws that are unpopular or ineffective. This is the mechanism by which the people control those representing their interests.
There is no such manner to remove judges. Judges are unelected officials, appointed for life, who can only be removed for egregious behavior through a lengthy impeachment process. The Founders did not want unelected officials dictating policy to the masses and imposing rules and laws without recourse. This was a chief component of the revolt which led to the creation of our Republic.
Herein lies the problem with Sotomayor’s judicial philosophy. She believes that judges, through the legal system, make policy and create laws. Her support for this can be found in video footage on any search engine (http://www.youtube.com/watch?v=OfC99LrrM2Q). Apparently, her education, years as a practicing attorney, and time as a judge have failed to introduce her to the text of the Constitution. Either that or she values her own intellect and experiences over the Founding legal documents which she has taken an oath to uphold and protect.
It is essential that judges apply the law as it is written by the legislative branch, unless the language of that law is deemed unconstitutional. In those rare instances where it is found to violate the text and intent of the Constitution, the specific law should be held null and void and the legislature should be forced to write better law. One of the most important values in courts applying law, and not creating it, is consistency and notice. The populace should know the law ahead of time so as to act in accordance with it. Judicial fiats remove this transparency and create chaos as citizens scatter in an attempt to comply with an ever-moving target.
“physiological differences”
As we all know, Lady Justice is blind. Statues of her show a cloth band covering her eyes as she balances the scales of justice. This is portrayed in accordance with the belief “that all men are created equal,” which was so eloquently espoused in the Declaration of Independence. The courts are intended to be the great equalizer, where any citizen can take a grievance and be heard on the evidence of the case and not judged by the physical characteristics he displays or the religious beliefs he holds dear.
Impartiality is the ideal and the measuring stick on which we determine the quality of the judge. Participants in the legal system desire to be treated the same as the person before them. Sotomayor does not hold these same virtues.
In her view, this impartiality is an ideal which can not be reached, and which she believes should not be sought. Although she claims that identity politics should not be practiced, Sotomayor believes that there are “inherent physiological or cultural differences” which influence legal reasoning and determine legal outcomes. The differences, which are inherent in each of us, mean that judges are incapable of always reaching the same conclusion.
She even went so far as to “hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion that a white male who hasn’t lived that life” (You can find the entire text of her speech in the La Raza Law Journal in 2002 or at http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html). Surely she does not mean to say that white male judges are inferior or reach inferior conclusions.
These comments appear to fly in the face of the feminist and civil rights movements that have argued, successfully, that gender and ethnicity do not determine outcome. They go so far as to come across as sexist and racist (imagine a white male giving a similar statement if you doubt the validity of this comment).
Regardless, it seems illogical and inherently wrong to confirm someone that places such emphasis on gender and racial make-up rather than solely looking to the laws she is sworn to apply. Do these comments and beliefs instill confidence that judicial decisions will not weigh uncontrollable factors such as genetics when determining winners and losers in legal cases?
Merit
The US Supreme Court is the most prestigious court in the land. Seats have traditionally been reserved for the most qualified jurists and even some of those with great support fall short when held to the high standards the position requires. The Senate needs to carefully evaluate Sotomayor and determine whether she can clear this high hurdle and be seated next to some of the greatest legal minds of our generation.
Many will immediately point to her educational credentials. She graduated with high honors from Princeton, was accepted to Yale Law and finished at the top of her class. These are impressive feats and show dedication and intelligence. Supporters will also discuss her time as a practicing attorney, her appointment to the US District Court, and her eventual rise to the 2nd Circuit Court as evidence of her vast experience and understanding of how the law really works. These are all valid arguments but fail to paint the entire picture of her as a jurist.
It is one thing to be a good student or trial attorney or trial judge, it is an altogether distinct task to work as an appellate court judge. The appellate court judge must review arguments based upon the Constitution, procedural rules, and novel concepts not yet agreed upon by the courts. The Circuit Courts may take these appealed District Court cases and hear arguments. In some instances, their decisions get appealed to the US Supreme Court for a final opinion.
This makes the Supreme Court the final arbiter of legal decisions on the federal level. Sotomayor has had six cases get appealed to the highest court in the land. Three of those decisions were overturned. One was upheld, though the Court’s opinion stated that her reasoning “flies in the face of statutory language.” In other words, she got to the right conclusion but took the wrong path to get there. A fifth case was upheld and there does not appear to be any problem with her analysis. The final case is in front of the Court now and is likely to be reversed (the case deals with the discrimination claim made by several white firefighters against the city of New Haven, CT). Taking the likely reversal in front of the Court now, she has had two of every three decisions reversed. This means that she was right only once in every three attempts and it appears that one of those three was by pure chance.
Merit dictates that Sotomayor is not fit to serve on the US Supreme Court. Failing to reach the proper conclusion 66% of the time is a failure and is a record not worthy of the highest court in the land; this becomes even more apparent when taking her other faults into consideration.
Republicans and Democrats alike need to thoroughly examine this nominee, her judicial philosophy, her impartiality, and her success as an appellate judge. During the confirmation process, each Senator must analyze the jurist and look beyond the accompanying distractions. They must ask themselves whether they value the Constitution, our Founding documents and principles, the progress we have made in putting race and gender behind us, and the notion that only those candidates of exceptional intellect and judgment will be confirmed to the highest Court. In doing so, our elected representatives can demonstrate that they truly value the virtues they spend so much time espousing in front of cameras and deny this nominee her appointment.
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