Justice John Roberts comment regarding President Obamas remarks about the Citizens United case which allows corporations to buy candidates:

                  ”very troubling”

White House response:

                    “What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections – drowning out the voices of average Americans,”

Nuff said

First Bush v. Gore now Citizens United v. FEC.  The United States Supreme Court has just empowered corporations and special interest (lobbyists) to buy members of Congress and the President legally!  The Court did so by reaching way beyond the scope of the facts and law before it and deciding a case not actually before the body.   It also overturned three case precedents in the process. The Citizens United v Federal Election Commission decision turned back 100 years of campaign finance laws protecting this democracy from the corruption and control of corporate america.  It will allow unlimited spending by corporations in political campaigns.  In other words, corporations are now allowed to spend unlimited amounts of money to directly influence elections thereby interfering and controlling the United States government.  If a corporation like Exxon Mobil wants to prevent alternative energy or climate change legislation it can spend a mere two percent $400 billion dollar profits to buy the entire Unites States government.   Imagine if Exxon, Chevron, and Shell pooled their funds?  If Goldman Sachs wants to prevent legislation of its risky investment and business practices, as of today, they can just buy Senate and House members who will vote against legislation.  Congress and Presidents will now be beholden to corporate america much more so than ever before.  Corporate interests will be the priority of lawmakers instead of their constituents.  In this overreaching and destructive decision the Supreme Court has officially started legislating from the bench by deciding a broad question of corporate spending just before an election cycle.

A couple of months ago Sen. John McCain begrudgingly participated in a Hispanic business round table where he was reported by those who attended to be snarly and grudge holding.  So much so that when he was asked about immigration reform McCain angrily responded “you people made your choice” referring to the 2008 presidential election.  Still angry much??  It may be that McCain took a certain amount of satisfaction in not voting for Justice Sotomayor to be confirmed given that  Hispanics predominately supported Barack Obama for President.  McCain has said “elections have consequences.”  One of the consequences is that the President should be given the utmost deference with respect to his Supreme Court nominees.  McCain seemed to be following his professed “elections have consequences” policy when he voted in support of  President Clinton’s nominee Ruth Bader Ginsberg.  As for yesterday’s vote against Sotomayor, given McCain’s history and temperament it would not be surprising to learn that this was intended as a jab to the Hispanic community.  However, and in fairness, McCain also voted against Sotomayor’s confirmation to the Second Circuit Court of Appeals. 

What is perplexing is that McCain is up for a pretty tough re-election campaign in Arizona which has a very large Hispanic population.  One would think that he would try to curry favor within the Hispanic community rather than risk its wrath.

The Senate just confirmed Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States.  Nine Republicans joined all 59 Democrats to confirm the former New York Appellate court judge.  Sen. Kennedy did not vote due to illness.  Sotomayor is the 111th Justice and the first Hispanic to be confirmed to the United States Supreme Court.  The nine Republicans and that voted for Sotomayor are: Alexander(TN), Collins(ME), Gregg(NH), Martinez (FL), Snowe (ME), Bond(MO), Graham (SC), Lugar (IN), Voinovich (OH).  Judge Sotomayor will be sworn in on Saturday.  There will be two swearing-in ceremonies one televised and one conducted privately.

Congratulations to confirmed Associate Justice Sotomayor!

In his effort to circuitously accuse Judge Sotomayor of being racist and potentially discriminatory as a Justice, Sen. Jefferson Beauregard Sessions asked the following question:

You say you’re bound by the superior authority. But the fact is when the re — the question of rehearing that 2nd Circuit authority that you say covered the case, some say it didn’t cover so clearly — but that was up for debate. And the circuit voted, and you voted not to reconsider the prior case. You voted to stay with the decision of the circuit.

And, in fact, your vote was the key vote. Had you voted with Judge Cabranes, himself of — of — of Puerto Rican ancestry — had you voted with him, you — you — you could have changed that case.

Perhaps someone can explain to me what Judge Cabranes’ ancestry has to do with the context of Sessions’ question?  Do all Puerto Rican judges vote as a block?  Perhaps Judge Sotomayor did not get the memo that says if you are a Puerto Rican appellate court judge you vote in favor of the Plaintiffs in all reverse discrimination cases regardless of precedent.  Sessions ended up unwittingly demonstrating exactly who he is and exactly why he was blocked in Committee from becoming a District Court judge in 1986.  Projection is a BIATCH!

Lets also not forget the patronizing tone of Senator Lindsey Graham.  Graham took every opportunity to take a condescending tone with Judge Sotomayor and this writer found it quite offensive.  Below is just a couple of examples:

GRAHAM: I think, for a long time, a lot of talented women were asked, can you type? And were trying to get beyond that and improve as a nation. So when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process, from different backgrounds, count me in.
But your speeches don’t really say that to me.

They — along the lines of what Senator Kyl was saying — they kind of represent the idea, there’s a day coming when there’ll be more of us — women and minorities — and we’re going to change the law. [translation:  And I'm scared shiteless of my peeps not controlling the rules]

And what I hope we’ll take away from this hearing is there need to be more women and minorities in the law to make a better America. And the law needs to be there for all of us, if and when we need it.
And the one thing that I’ve tried to impress upon you through jokes and being serious, is the consequences of these words in the world in which we live in. [YUCK! The condescension makes me want to puke!]

You know, we’re talking about putting you on the Supreme Court and judging your fellow citizens. [Thank you so much Sen. Graham for explaining to me why I'm here. I didn't judge a single citizen throughout my last 17 years on the bench.....I could have sworn this was an audition for "Whose Got Talent?"  Anyway, now that you have so patiently explained to me the reason for my presence here I just want to say that my entire fate is in your hands.  Please oh please grant me this great wish that only you have the power to give oh kind sir....Give me a freakin break!] 

And one of the things that I need to be assured of is that you understand the world as it pretty much really is.

[ Oh thank you again for bringing to my attention "the world as it really is."  I never had to think about it.  You see, I have spent my entire adult life either in the military (admirable but not the real world) or in politics so I have no concept of  "the world as it really is."  It is incredulous that Graham thought it necessary to question whether a former prosecutor from the Bronx knows how the world really is. SERIOUSLY!!]

Then there was this doosey of an exchange:

GRAHAM: …..When you look at the evaluation of the judges on the 2nd Circuit, you stand out like a sore thumb in terms of your temperament. What is your answer to these criticisms?

SOTOMAYOR: I do ask tough questions at oral arguments.

GRAHAM: Are you the only one that asks tough questions in oral arguments?  [Dripping condescension]

SOTOMAYOR: No, no, not at all. I can only explain what I’m doing, which is, when I ask lawyers tough questions, it’s to give them an opportunity to explain their positions, on both sides, and to persuade me that they’re right.

I do know that in the 2nd Circuit, because we only give litigants 10 minutes of oral arguments each, that the processes in the 2nd Circuit are different than in most other circuits across the country, and that some lawyers do find that our court, which is not just me, but our court generally, is described as a “hot bench.” It’s a term of art lawyers use. It means that they’re peppered with questions. Lots of lawyers who are unfamiliar with the process in the 2nd Circuit find that tough bench difficult and challenging.

GRAHAM: If I may interject, Judge, they find you difficult and challenging, more than your colleagues. And the only reason I mention this is that it stands out when you — you know, there are many positive things about you. And these hearings are designed to talk about the good and the bad. And I never liked appearing before a judge that I thought was a bully. [ Grow up! You're a lawyer deal with it!  the court room isn't Show & Tell in kindergarten class] It’s hard enough being a lawyer, having your client there to begin with, without the judge just beating you up for no good reason. Do you think you have a temperament problem? [ I don't know perhaps the former presidential nominee of your party of whom you were the senior advisor to can explain to me the definition of a "temperment problem"]

SOTOMAYOR: No, sir. I can only talk about what I know about my relationship with the judges of my court and with the lawyers who appear regularly from our circuit. And I believe that my reputation is such that I ask the hard questions, but I do it evenly for both sides.

GRAHAM: In fairness to you, there are plenty of statements in the record in support of you as a person, that do not go down this line. But I would just suggest to you, for what it’s worth, Judge, as you go forward here, that these statements about you are striking. They’re not about your colleagues. You know, the 10-minute rule applies to everybody. And that, you know, obviously, you’ve accomplished a lot in your life, [thank you for your validation] but maybe these hearings are a time for self-reflection. [Thanks for the advice.  I'll be sure to take it under advisement as soon as you pick up your knuckles that are dragging in the dirt ] This is pretty tough stuff that you don’t see from — about other judges on the 2nd Circuit.

During his questioning Graham went so far as to test Sotomayor on her knowlege of such 1L legal terms as “legal relativisim,” “strict construction” and “originalism” in the context of the Constitution.  In his first statement above, Sen. Graham shows his true anxiety regarding Sotomayor’s nomination.  His fear that some day men that look like him will not be in charge and thus will be subjected to playing by the rules and laws enacted as a result of a diverse populace that makes up Congress, the Judiciary, and the Executive branch.  Sí, SE PUEDE!

One more offender, Sen. Jon Kyle of Arizona.  Sen. Kyle attempted to badger Judge Sotomayor into agreeing that as an Associate Justice she will recuse herself from cases granted review by SCOTUS concerning any ISSUE (Any issue! NOT one of her prior cases but any ISSUE) that she presided over and decided as a lower court judge????? SERIOUSLY???  Is he short of a full deck or does he think she is??  If Judge Sotomayor were to grant such a request, having presided over and decided thousands of cases involving as many issues throughout her 17-year career as a District and Appellate court judge, she would never leave her chambers let alone preside over any cases brought before the Court.  Well that’s one way of diminishing her impact on the Court.  Wow Sen. Kyle……think much.

One final point regarding the GOP Senators and Judge Sotomayor.  Isn’t it baffling that the Republican senators continue to interrogate Sotomayor about an alleged inclination to use “empathy” to judge cases yet when it comes to issues such as abortion, the Second Amendment, a right of privacy, etc. they continually ask her to answer according to what her gut tells her she would do in such a case?  So you tell me.  In the context of the Republican senators primary “empathy has no place in judging” argument, what is the relevance of Sotomayor’s “gut feeling” regarding the aforementioned hot button issues when in it comes to the law?  Same ol hypocracy.

Message to Judge Sotomayor:  PLEASE, PLEASE, PLEASE, stop answering “no sir” and “yes sir” when you’re responding to questions.  These folks are your peers and should be treated as such.  Please refer to them as Senator and not “sir” or “ma’am.”  You being a New Yorker, not a Southerner, use of such pleasantries make you appear meek and subservient especially when being spoken to in such a condescending way by the likes of Sens. Graham and Sessions.

Most people know that today begins the confirmation hearings of Judge Sonia Sotomayor to the United States Supreme Court.  Most also know that the GOP plans to respectfully put Sotomayor through the ringer knowing full well that she will be confirmed overwhelmingly in the end.  I was very curious as to why given the current economic state of the country the Republican Party would needlessly draw out the Sotomayor hearings and waste tax dollars knowing that it is all for naught.  Well I asked one GOP insider who runs a high profile conservative think tank in DC.   This conservative GOPer first agreed with me that Sotomayor is very qualified and would absolutely be confirmed but added that Democrats must pay a price for their nominees to the Supreme Court.  Meaning that there must be political capital paid to nominate and confirm Sotomayor.   So all this talk about “empathy” and the Ricci case and activist judge allegations are about trying to find something that will in some way justify the GOP’s ramblings regarding everything except Judge Sotomayor’s actual judicial record and tarnish the Democrats as much as possible in the process.  Yes folks even though the judiciary branch is suppose to be separate and distinct from the executive and legislative branches surprise it is still all about politics and the never ending campaign.  Instead of looking at Sotomayor’s actual cases to determine what type of Justice she will be the GOP has relied entirely on snippets of speeches taken out of context and made outside the court room to make their case against Sotomayor.  The main point being to try and smear Sotomayor and paint Democrats and the President as bleeding heart liberals incapable of restraint.  What we think that the GOP will be successful at demonstrating is their continued lack of fiscal responsibility when it comes to tax payer dollars.

For those of you who missed it, Chris Matthews had Joan Walsh on his show discussing Supreme Court Justice potential nominee Sonia Sotomayor and a 7-6 decision out of the Second Circuit Court of Appeals that Sotomayor and six other justices ruled not to hear.  The case involves reverse discrimination and was brought by seventeen white candidates and one Hispanic who work for the New Haven Fire department.  The named plaintiff is Frank Ricci.   The case stems from two promotional exams for fire lieutenant and fire captain where the results of the test revealed that the top scorers were virtually all white.  This also was the first time this particular exam had been administered.  The city asserted that the test had a disparate impact on minority firefighters and refused to certify the test.  For the Captain exam, out of the twenty five white candidates who took the exam,  seven white firefighters scored high enough to qualify for promotion in addition to two Hispanics.  No blacks scored high enough to be considered for promotion to Captain even though a total of eight blacks and eight Hispanics took the exam.  For the Lieutenant exam, 75 candidates tested, out of which 43 were white, 19 were black, and 15 were Hispanic.  Thirty-four candidates passed, 10 of which were white, 6 Black and 3 Hispanic.  The top ten scorers were white thereby being the only ones who would be considered for promotion to the eight Lieutenant vacancies.  Therefore, no blacks or Hispanics would be promoted to Lieutenant.  Now that you have the background, this is the exchange that took place between Chris Matthews and Joan Walsh. (I didn’t include Buchannan’s comments simply because they are to ridiculous to warrant comment)

Joan Walsh: Here we are three Irish Catholics talking about one of the toughest, I think, affirmative action cases in the country.  There is a reason why we have some of these ugly cases and that is a failure of our politics to really resolve some of these ugly conflicts.  We have fire departments all over this country, God bless them, that are still disproportionately, not just white, but Irish Catholic.  My home of San Francisco is that way.  I’m in New York today and it’s…..a majority of New Yorkers are black or latino and only ten percent are firefighters and so what’s happened in a lot of these cases Chris is that Irish Catholic dominated unions have really fought against efforts to make the test more fair…

Chris Mathews: Yea…well I’m suspicious of your argument Joan because I think we’ve had in the past a lot of Italian barbers and don’t see any problem with that…we had a lot of Mexicans running Mexican restaurants I don’t see the problem…but if you can prove discrimination then I’m with ya..Pat..its about proving discrimination, you have to prove it you can’t assume it.

Walsh: Do you really not see a problem, do you really think there…..

Matthews: It’s about proving discrimination….you have to prove it, you just can’t assume it…

Walsh: So we think there is something uniquely Irish Catholic about being able to fight fires?

Matthews: It’s called tradition, it’s called tradition…its been going on since the nineteenth century

Walsh:  And it discriminates against black people

Pat Buchannan:  ……what is happening now to white men right now is exactly what was done to black folks

Matthews:  I…I. don’t buy a…..Joan my problem is results based fairness..if fifteen guys go out for a basketball team or any sports team and ten of them who win happen to be one ethnic group I’m not gonna say that there is something wrong with the try out.  I would say the top ten won and that’s why there on the team.  I wouldn’t say redo the try out so that you have racial balance on the team or any other kind of sports…I thinks its about…its about fairness not about results.

Walsh: Public sector jobs are a very different animal from a  sports team.

Matthews: How so?

Walsh:there are plenty of black and Latino and female firefighters who can do the job, who can meet requirements for the job, but these tests have often historically been rigged and the entire promotion system has been rigged, we are unrigging it……

Matthews: Well…one of the arguments I accept from Clarence Thomas, who I normally disagree with was..he says that the problem with this a…so called affirmative action, I’m for some affirmative..I’m certainly for reaching out to people that don’t normally make the list and I’m certainly for aggressive recruitment, but when it comes down to rigging test so you get a certain result that’s what Clarence Thomas says his presence at Yale law bothered him.  He said there are some people that see a fellow like him at Yale law and say oh you got in because they had some quota that got you in..he doesn’t like that…that that notion out there and this kind of court ruling if they go in that direction is gonna sell that idea..that the only way a minority gets a break in this country is cause somebody gave him a break ….(undetectable)…and that’s not healthy.  (Did he really just raise Clarence Thomas as support for his argument?  Does Thomas make the same complaint about his position on the Supreme Court?  If so, and Clarence felt so strongly about being perceived as a quota recipient why not turn down the Supreme Court appointment?  It always astounds me when folks bring up Thomas as the token black person that validates their anti affirmative action position when he is the most infamous and hypocritical affirmative action recipient of all time.  Give me a freakin break)

………………………. 

Matthews reiterates that the named plaintiff in the case is Italian and one of the complainants is Hispanic.  He then goes off on some irrelevant tangent about the majority of firefighters killed in 911 being Irish Catholic and the Irish Catholic proud family tradition of firefighting that goes back to the nineteenth century.  (Uhhh what exactly does that have to do with the price of cheese)

Walsh:  Don’t race bait me please Chris…I have firefighters in my family..God Bless them, they’re brave but the fact…

Matthews:  Right..then why are you accusing them of bigotry?

Walsh:  Because the fact of the matter is they have protected those jobs for their brothers, for their sons, and they’re public sector jobs, this isn’t the family business Chris.  Bravery comes in all colors

Matthews:  We’ll see if that…we’ll see if that….we’ll see if that was a fair test or not but you can’t judge a test by the results

Walsh: Bravery comes in all colors 

Matthews:  You got to judge a test by its basic fairness and we’ll see when the final court rules on this.

Let me start out by saying that this is a difficult case with no easy answers.  Now lets talk about the law.  According to the Supreme Court, if a test for merit disproportionately eliminates one racial or gender group and another equally valid test does not, the employer must use the merit test that does not.  Many have successfully argued that merit can be measured in different ways.  For example, someone who scores high on a “multiple choice” test may be “book smart” but not “street smart” both of which are equally valuable in firefighting.  The fact is that some written tests produce racial disparities in certain job categories that are unacceptable to a majority of specialist in the employee testing field.

To Mr. Matthews and others, a test does not need to be proved unfair to have a disparate impact on certain minorities thereby making it a violation of antidiscrimination laws.  A bias can exist based on those drafting the test who in so doing, subconciously or conciously, give an unfair advantage to certain groups.   Another way racial or gender bias can be determined is in the way the test is graded or weighted which can make it unfair to a specific ethnic group or gender.  There are many considerations that are used to determine whether a test does not disproportionately negatively impact certain ethnic groups all of which are legitimate.

Further, diversity is a legitimate and “compelling” goal of the department and its promotion process and though you may not agree with the weight the department gave such a goal you are not running the New Haven Fire Department.  Believe it or not diversity is a legitimate business objective for many corporations not because of some benevolent motive to reach out to minorities and women but because they want to better serve there customers and increase profits.  The way to do this is to hire folks who look like your customers so they can better market their products.  To sum it up, a racial motive is not synonymous with unconstitutionality.  Think about it, every anti-discrimination statute used to combat racial discrimination and all enforcement measures taken reflect a racial motive. Isn’t this employer doing the same thing as the anti-discrimination statutes by throwing out the test before a disparate impact claim can be brought?   It was proved that based on the calculation of the scores there was a disparate impact on African-Americans thereby subjecting the department to future lawsuits by minority firefighters in the department.  Trying to prevent discrimination and lawsuits by evaluating the exam and taking action preemptively is exactly what the anti-discrimination statutes are there for.  In addition, the law dictates that employers can use race-neutral means to improve diversity in their corporations or organizations without violating the Constitution and doing so does not equate to discrimination against non-minority employees.  This case was not a quota or set aside program, the same exam was given to all the applicants and none of the results were certified.  The employer believed that the results yielded a disparate impact on minority employees and chose to remedy the situation by not certifying the results.  The decision not to certify the exam affected all applicants equally. 

Finally, the plaintiffs do not have a legal property interest in the results.  Plaintiffs scores would have merely given plaintiffs an opportunity for promotion not a guarantee. In this case no minorities would have been given the opportunity to be promoted to lieutenant and at most two Hispanics and no blacks would have the opportunity to be promoted to Captain.  One final word on this point, if a profession or field where the salaries of the employees are paid by tax payers is overwhelmingly dominated by a single ethnic group shouldn’t the employer start asking questions as to why?

I was going to rip Matthews apart but Walsh did it for me.  The firefighting profession does not belong to Irish Catholics simply because they have been doing it since the beginning of the nineteenth century.  Further, the fact that Irish Catholics have dominated the profession lends support to the argument that the test could be rigged, intentionally or unintentionally, to ensure that they continue to hold the majority of the high ranking positions because they are drafting the exams.  I am not saying that this is the case in the Ricci instance because I do not know all of the facts but it is a legitimate question that should be addressed.  Also, Justice Sotomayor is one of seven justices who followed established law and decided not to hear this appeal and thus should not be singled out and falsely accused of selling a particular idea.

President Barack Obama has confirmed that he just received a call from Justice David Souter conveying that he (Souter) will retire at the end of this term (June).  The President interrupted the White House press briefing being given by Robert Gibbs to make the announcement directly to the White House press corp.  The President hopes to have the new Supreme Court Justice confirmed by October in time for the start of the new term.   He also made the following statement regarding the upcoming selection process:

President Obama said that he will seek someone:

…with a sharp and independent mind and a record of excellence and integrity.  I will seek someone who understands that justice isn’t about some abstract legal theory or foot note in a case book, it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their own homes and welcomed in their own nation. I view that the quality of empathy of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.  I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.

Justice Souter’s letter to the President:

May 1, 2009

Dear Mr. President:

When the Supreme Court rises for the summer recess this year, I intend to retire from active service as a Justice, under provisions of 28 US.C section 371 (b) (1), having attained the age and met the service requirements of subsection (c) of that section. I mean to continue to render substantial judicial service as an Associate Justice.

Yours respectfully 
  s/ David Souter

The President 
The White House 
Washington, DC 20500

This process will be an all out brawl with many of the conservative members of the GOP regardless of who the President selects as a potential Souter replacement.  However, Sen. Hatch of Utah(R) did say, on tape, that his main requirement is that the candidates are qualified.  Apparently, he forgot who was making the selection.

It’s time for the President to choose what will be a significant part of his legacy.  Supreme Court Justice David Souter is expected to announce his retirement by the end of the Court’s term in June.  There have been rumors circulating for a few weeks about Souter’s retirement because he has yet to begin interviewing law clerks for the next term let alone choosing a law clerk.  Justice Souter is also not a fan of Washington, DC and never has been.  The Justice is very much looking forward to returning to his home state of New Hampshire as soon as a replacement is confirmed.   We assume that the election of Barack Obama played a huge part in the timing of Souter’s decision who is expected to appoint a replacement in keeping with Souter’s constitutional and ideological leanings.  Now the New Hampshire native can leave the court with a clear conscience.  Oh and for those lambs who say that the Supreme Court isn’t political I have four words for you…..Bush v. Gore  2000.

The President will hopefully choose a woman so that the court is more representative of  the nation and because there are SOOOOO many qualified female candidates out there to choose from.  There are too many men on the Court who are deciding the fate of an equally gendered population.  The highest court in the land should reflect the voices of both genders equally especially when we have such a large qualified pool of women to choose from.   There really is absolutely NO reason not to fill all of the upcoming vacancies on the Court during President Obama’s tenure in the White House with women.   Women bring a valuable and significant perspective to the Court that cannot be duplicated by its male members.  For example, the decision-making process.  Women have a plethora of tools inside their tool boxes that they utilize to make decisions and such tools are vastly different from the tools used by men.  Tools can mean whatever you want it to mean, the point is that men and women think differently and as a result can come to VERY different conclusions.  In addition, women from different backgrounds bring even more perspectives so by only appointing one or two females to SCOTUS deprives the Court of the wealth of stellar and available knowledge and experience that many different types of women contribute to the bench everyday.  The more diverse the tools being brought to the table by a more representative Court the better the decisions of that court.  Further, the more the decisions will reflect the best interest of the population as a whole.  No more than three vacancies are expected during a consecutive two terms of an Obama administration.