So that Supreme Court nominee thinks

[sppunk]

the Supreme Court justices should serve as policy makers.

She should be immediately blocked from the nomination process for such beliefs.

[Nimrod's Son]

I haven't seen anything that suggested this. All of the news results have simply praised her and Obama's brilliance in picking her, except for the Huffington post which said that the GOP can't afford to stand against her because they'll be portrayed as racist.

[Debaser]

Originally Posted by sppunk

the Supreme Court justices should serve as policy makers.

She should be immediately blocked from the nomination process for such beliefs.

stop getting all your news from foxnews and drudge report, you don't know what you're talking about.

[Debaser]

[Debaser]

she's just stating the defacto state of affairs, she then in the very next breath, explicitly says she is not advocating nor endorsing legislating from the bench. it's just the way it is: trial courts try the cases before them, appeal courts by their nature (since they are above the trial courts) are setting a policy (not law, but policy) by setting precedents that governs the courts below them.

why don't you get some better news sources, sppunk?

[Luke's Wall]

I bet she is member of la raza. Its ok to have a member of racist organization in position of power...talk about double standards...

[sppunk]

Originally Posted by Debaser

she's just stating the defacto state of affairs, she then explicitly says she is not advocating or endorsing it. it's just the way it is: trial courts try the cases before them, appeal courts by their nature (since they are above the trial courts) are setting a policy (not law, but policy), setting precedents that governs the courts below them.

why don't you get some better news sources, sppunk?

I haven't seen either. Mt statement is based on what she has said and its a belief I'm strongly against.

[Trotskilicious]

is this about legislating from the bench again

[sppunk]

I'm sure she's a fine candidate. I just get queasy when judges who have the view of courts as policy makers are put in such powerful positions.

Debaser, I haven't really read much of anything on this chick yet - I'll do that when the judges here in PA put out their prospectus on her in a few days.

I kinda actually made this thread just because no one was discussing our new SCOTUS justice yet.

[Trotskilicious]

scotus

prospectus

wtf

[TuralyonW3]

ahh you just trying to start shit sp

[Debaser]

Originally Posted by sppunk

I haven't seen either. Mt statement is based on what she has said and its a belief I'm strongly against.

what are you talking about. what did she say

[Trotskilicious]

I rule from my balls.

[Joe]

well this is the south and all i hear is people whining about her being a mexican.

and sence when is it normal to disrupt tv to say there has been a new appointment ot the sc?

[Debaser]

Originally Posted by sppunk

I'm sure she's a fine candidate. I just get queasy when judges who have the view of courts as policy makers

source? if your statement is based on the same source as the youtube clip above (which is what all the popular rightwinger sites are basing it on), then you are experiencing a failure in comprehension. or letting yourself be misled.

[Trotskilicious]

Originally Posted by mojo jojo

well this is the south and all i hear is people whining about her being a mexican.

and sence when is it normal to disrupt tv to say there has been a new appointment ot the sc?

she's puerto rican you moron

actually she was born in the bronx so she's fucking american god damn

[Joe]

and from the looks of her you dont have to worry about her sexually harrasing anyone

[Trotskilicious]

is that supposed to be an ugly joke?

[Trotskilicious]

aren't ugly people most likely to sexually harass

[Joe]

ok she is puerto rican/ american fuck me.

and yeah it was an ugly joke, i'm just saying she is no clarence thomas

[Corganist]

Originally Posted by Debaser

she's just stating the defacto state of affairs, she then in the very next breath, explicitly says she is not advocating nor endorsing legislating from the bench.

She was obviously covering herself. The whole thing screamed "Oops. I just stepped in it! But who cares? Everyone laugh at me while I mockingly go through the 'possible Supreme Court nominee' motions!"

it's just the way it is: trial courts try the cases before them, appeal courts by their nature (since they are above the trial courts) are setting a policy (not law, but policy) by setting precedents that governs the courts below them.

Yes, appellate courts do establish precedent which to some extent by its very nature dictates policy onto lower courts. But that doesn't give appellate judges the right to turn their focus onto that overriding policy. They're supposed to be just as bound to the case in front of them as the lower courts are. She seems to be implying that judges should be allowed to somehow weigh the application of the law in an individual case against the way the law would be applied in other future cases. Judges aren't supposed to rule based on the big picture like that, and it's troubling that she thinks they can.

[Trotskilicious]

why

[Debaser]

A.L.:

The context is that Sotomayor was explaining the differences between clerking at the District Court level and clerking at the Court of Appeals level. Her point, which is unquestionably true as a descriptive matter, is that judicial decision making at the Court of Appeals level is more about setting policy, whereas judging at the District Court level is a more about deciding individual cases and disputes. And the reason for this is obvious. Decisions at the Court of Appeals level don't just determine the fates of individual litigants; they serve as controlling precedent for all District Court judges within that circuit. Thus any decision by a Court of Appeals becomes the policy of that circuit, at least until it's overruled by the Supreme Court (which is rare).

There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear. When the law is clear, no one bothers to appeal (because it's really expensive). A Court of Appeals grapples with the difficult questions, the gray areas in the law, and ultimately issues rulings one way or the other. These rulings then become the policy of that particular circuit, serving as controlling precedent in future cases. This is just as true in the ultra-conservative Fourth Circuit as it is the more liberal Ninth Circuit.

But in Simplistic Republican World, none of this actually happens. Good conservative judges don't "make policy," they simply enforce the law. The law is apparently always clear. Indeed it's a wonder that lawyers even bother to appeal cases in the Fourth Circuit. After all, they should know that the conservative jurists in that circuit will simply "enforce the law" (because they wouldn't dream of "making policy"), so the outcome should be very predictable.

Undoubtedly conservatives will point to Sotomayor's reaction to her own words as evidence that she was letting slip some secret about how liberal judges actually operate. But the obvious truth is that she was merely anticipating that some clown like Orrin Hatch might someday twist her worlds to mean something they don't. She was talking about how all judges operate at the Court of Appeals level. If you're not thinking about the policy implications (i.e., the precedential effect) of your rulings, you're not doing your job.

[Thaniel Buckner]

Originally Posted by Corganist

She was obviously covering herself. The whole thing screamed "Oops. I just stepped in it! But who cares? Everyone laugh at me while I mockingly go through the 'possible Supreme Court nominee' motions!"



Yes, appellate courts do establish precedent which to some extent by its very nature dictates policy onto lower courts. But that doesn't give appellate judges the right to turn their focus onto that overriding policy. They're supposed to be just as bound to the case in front of them as the lower courts are. She seems to be implying that judges should be allowed to somehow weigh the application of the law in an individual case against the way the law would be applied in other future cases. Judges aren't supposed to rule based on the big picture like that, and it's troubling that she thinks they can.

correct me if i'm wrong but doesn't the appeals courts exist in order to nullify laws that are unconstitutional. you know as counterbalance to the power of a legislative body whose electorate may be a bunch of xenophobic fuckwads?

it sounds to me like policy making is inherent in its function.

[Trotskilicious]

this is gonna be another really dumb argument with Corganist about what the supreme court is supposed to be

don't you already know what he's gonna say, it's basically the "simplistic republican land" explanation that debaser already quoted and I maintain that judges are "legislating from the bench" when they forward a leftist agenda and "ruling on the basis of law" when they forward a rightist agenda. It's completely political and totally asinine.

the people who rail on about this are always conservatives, it's just another method of winning the words game with a political buzz-phrase that sounds really bad but doesn't mean a fucking thing.

[Corganist]

Originally Posted by Debaser

The context is that Sotomayor was explaining the differences between clerking at the District Court level and clerking at the Court of Appeals level. Her point, which is unquestionably true as a descriptive matter, is that judicial decision making at the Court of Appeals level is more about setting policy, whereas judging at the District Court level is a more about deciding individual cases and disputes. And the reason for this is obvious. Decisions at the Court of Appeals level don't just determine the fates of individual litigants; they serve as controlling precedent for all District Court judges within that circuit. Thus any decision by a Court of Appeals becomes the policy of that circuit, at least until it's overruled by the Supreme Court (which is rare).

Again, appellate courts do set policy on lower courts as a consequence of their nature, but that doesn't get you to saying that decision making in appellate courts is more "about setting policy" than deciding individual cases. That's just not true. There's a big difference between recognizing the policy-making aspect of appellate courts and embracing it.

There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear. When the law is clear, no one bothers to appeal (because it's really expensive). A Court of Appeals grapples with the difficult questions, the gray areas in the law, and ultimately issues rulings one way or the other.

But the question to be answered is always "how does the law apply to this particular case? Of course the law isn't always clear. No one says that it is. But it's not the job of judges to go in and do a sweeping generalized cleanup anytime they see a lack of clarity in the law. They're only supposed to clarify the law as far as it affects the issues in the case in front of them. There are only a limited number of issues from any case that an appellate court may even consider. They don't have carte blanche to make wide ranging policy decisions unless the case demands it. And in most appeals, the issues are so narrow that there's really no way that sweeping policy should ever really be a huge consideration. In the Supreme Court, maybe, but they choose what cases they hear to maximize "policy" effect. Lower appellate courts don't have that luxury.

If you're not thinking about the policy implications (i.e., the precedential effect) of your rulings, you're not doing your job.

This line of argument says that if a judge thinks a particular reading of the law is correct for the case in front of them, but they somehow look into their crystal ball and decide that it would cause problems in some hypothetical case in the future, then they can basically forsake the rights of the parties in the case in front of them for the rights of hypothetical people in hypothetical future cases. How is that justifiable in any way? Would you like to be in the court of a judge who thinks that they could do that? "Sorry, the law agrees with you...but it would set a policy that I'm uncomfortable with in this circuit and so I'm going to rule the other way." That's where letting judges "think about policy implications" gets us.

[Corganist]

Originally Posted by Thaniel Buckner

correct me if i'm wrong but doesn't the appeals courts exist in order to nullify laws that are unconstitutional. you know as counterbalance to the power of a legislative body whose electorate may be a bunch of xenophobic fuckwads?

it sounds to me like policy making is inherent in its function.

The appeals courts exist primarily to correct the mistakes of the lower courts. The power to declare laws unconstitutional is one tool in their arsenal to that end. But this idea that they're supposed to be looking for opportunities to butt heads with the legislature is a bit off base.

[Corganist]

Originally Posted by Trotskilicious

this is gonna be another really dumb argument with Corganist about what the supreme court is supposed to be

don't you already know what he's gonna say, it's basically the "simplistic republican land" explanation that debaser already quoted and I maintain that judges are "legislating from the bench" when they forward a leftist agenda and "ruling on the basis of law" when they forward a rightist agenda. It's completely political and totally asinine.

the people who rail on about this are always conservatives, it's just another method of winning the words game with a political buzz-phrase that sounds really bad but doesn't mean a fucking thing.

Yeah, it's all a words game! There's no such thing as an objectively bad court decision! Everything is relative!

Come on. Just because you don't understand the difference between "legislating from the bench" and "ruling on the basis of law" doesn't mean that the terms are without meaning.

[Debaser]

Originally Posted by Corganist

Again, appellate courts do set policy on lower courts as a consequence of their nature, but that doesn't get you to saying that decision making in appellate courts is more "about setting policy" than deciding individual cases. That's just not true. There's a big difference between recognizing the policy-making aspect of appellate courts and embracing it.

I think you're reading something that simply isn't there. I get no sense that she's "embracing" anything. She's merely describing the difference between courts.

Originally Posted by Corganist

But the question to be answered is always "how does the law apply to this particular case? Of course the law isn't always clear. No one says that it is. But it's not the job of judges to go in and do a sweeping generalized cleanup anytime they see a lack of clarity in the law. They're only supposed to clarify the law as far as it affects the issues in the case in front of them. There are only a limited number of issues from any case that an appellate court may even consider. They don't have carte blanche to make wide ranging policy decisions unless the case demands it. And in most appeals, the issues are so narrow that there's really no way that sweeping policy should ever really be a huge consideration. In the Supreme Court, maybe, but they choose what cases they hear to maximize "policy" effect. Lower appellate courts don't have that luxury.

More projecting. I don't see how she or A.L. implies anything of the sort.

Originally Posted by Corganist

This line of argument says that if a judge thinks a particular reading of the law is correct for the case in front of them, but they somehow look into their crystal ball and decide that it would cause problems in some hypothetical case in the future, then they can basically forsake the rights of the parties in the case in front of them for the rights of hypothetical people in hypothetical future cases. How is that justifiable in any way? Would you like to be in the court of a judge who thinks that they could do that? "Sorry, the law agrees with you...but it would set a policy that I'm uncomfortable with in this circuit and so I'm going to rule the other way." That's where letting judges "think about policy implications" gets us.

I don't think that is a realistic hypothetical. Can you give an actual concrete example of this? a particular issue or case of this?

Your entire response so far seems to be one huge strawman, arguing against a line of thinking that nobody advocates.

[Thaniel Buckner]

Originally Posted by Corganist

The appeals courts exist primarily to correct the mistakes of the lower courts. The power to declare laws unconstitutional is one tool in their arsenal to that end. But this idea that they're supposed to be looking for opportunities to butt heads with the legislature is a bit off base.

then what the fuck are we arguing about.