You only have to look at Scalia's embarrassingly bitter dissent in the gay marriage case. It's one long appeal to tradition and religion and it is very much rooted in his background.
It is ridiculous to pretend his background had nothing to do with his judicial reasoning.
Do you believe that he could have risen above it?
It's a moot point, because he didn't.
But as we seem to be talking about some theoretical future nominee, I think we could nominate a magical justice-dispensing robot and it would still have opinions informed by its background. It's unavoidable, and I believe any person who says their own background or personal views would not be a factor in their decisions is either being untruthful or naive.
I think all judges are predominantly informed by their background - their background in law. A judge who shares some demographic with the persons involved in their cases are not necessarily a boon to them - in fact, often it's quite the opposite. Ice cold, but it's professional.
I would rank a judge's personal background as informing their decision making process. Of course I would. But their legal background - the types of cases they've seen, presided, and reviewed? That ranks so much more, even if it goes in the opposite direction. And that correlates only loosely with their personal demographic, if at all. I'd trust a straight judge with experience and records in gay rights cases to have a more nuanced view on the subject than a gay judge who happens to be a novice at these and hasn't personally had to hear or review the related precedents and proceedings. But again, I am extrapolating from experience in other professional fields than law.
Why would you expect anyone to nominate a novice to the highest Court?
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EncA Fool with CompassionPronouns: He, Him, HisRegistered Userregular
You only have to look at Scalia's embarrassingly bitter dissent in the gay marriage case. It's one long appeal to tradition and religion and it is very much rooted in his background.
It is ridiculous to pretend his background had nothing to do with his judicial reasoning.
Do you believe that he could have risen above it?
It's a moot point, because he didn't.
But as we seem to be talking about some theoretical future nominee, I think we could nominate a magical justice-dispensing robot and it would still have opinions informed by its background. It's unavoidable, and I believe any person who says their own background or personal views would not be a factor in their decisions is either being untruthful or naive.
I think all judges are predominantly informed by their background - their background in law. A judge who shares some demographic with the persons involved in their cases are not necessarily a boon to them - in fact, often it's quite the opposite. Ice cold, but it's professional.
I would rank a judge's personal background as informing their decision making process. Of course I would. But their legal background - the types of cases they've seen, presided, and reviewed? That ranks so much more, even if it goes in the opposite direction. And that correlates only loosely with their personal demographic, if at all. I'd trust a straight judge with experience and records in gay rights cases to have a more nuanced view on the subject than a gay judge who happens to be a novice at these and hasn't personally had to hear or review the related precedents and proceedings. But again, I am extrapolating from experience in other professional fields than law.
Why would you expect anyone to nominate a novice to the highest Court?
Looking at the presidential field, certainly I would. Cruz has an Art History person with no notable international communication or policy background as his top pick for Secretary of State, Trump has openly stated his campaign will put business partners, funders, and friends into the cabinet. Why would the SCOTUS be different?
To piggyback on what Wyvern said, the problem also is that the subtext here is "A straight white male Harvard graduate is objective, with nothing in his self or experience that would influence his decision, while a gay black female UCLA graduate may have experiences that could bias her opinions." It's the idea that the former is "default" and therefore neutral compared to the latter, when the fact is that neither are neutral, both have experiences and attributes that influence their opinions, and both should have some form of representation on the court.
I think that's an unfair reading.
The complaint is when someone is pushed as a good choice BECAUSE of those experiences. It's implying that the candidate was selected because of their willingness to put that experience over the text of the law.
There is no way to interpret law without including one's own experience. And no one has said that potential candidates should simply ignore what the text of the law is. But the simple reality is what the constitution means and how it should apply varies wildly depending on said experience. One person's "ignoring the text of the law" is another person's "applying the law properly."
Yes, in practice.
It doesn't mean you should openly flaunt it as a plus.
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HakkekageSpace Whore Academysumma cum laudeRegistered Userregular
edited February 2016
Just to make a minor point about Thomas: There has been some chatter about the irrelevance of background considering Thomas' ultra conservative ideology. I don't think there is a significant disconnect there. His background has clearly had an impact on his judicial rulings.
Take the most obvious example: Affirmative Action. Justice Thomas is motivated by what I will charitably call 'passion' in his arguments that Affirmative Action based on race creates a negative perception about the person who receives it and therefore harms the minority, rather than helping them. He has argued that because Affirmative Action exists, brilliant minorities must suffer the stigma and lifelong scorn of people who view their accomplishments as illegitimate.
This, despite the fact that Clarence Thomas unquestionably benefited from Affirmative Action in his own education. Or rather, because he has benefited from it, he resents it and believes that he is doggedly pursued by the perception of inadequacy that it confers on him.
I do not think that without Justice's Thomas' personal experience with Affirmative Action, he would write concurring opinions like the one in Fisher v U. of Austin (2013, the first rodeo) where he compared the University's argument that it has a compelling interest to promote diversity in its student body to the arguments of slaveowners and segregationists that black people were better off oppressed. That is one hell of an extreme comparison, but it stems from his belief that any and all classifications based on race are inherently injurious regardless of whether the status quo is even more injurious, and thoroughly disregarding the fact that slavery and segregation were the status quo. It goes far beyond the argument that AA is a blunt and imperfect tool. It's really something!
read it here (Thomas doesn't write long opinions so read it all if you like, but Part III Sec A is the main part I'm referring to): https://www.oyez.org/cases/2012/11-345
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Inquisitor772 x Penny Arcade Fight Club ChampionA fixed point in space and timeRegistered Userregular
The claim is that you can't use someone's past to accurately predict their future decisions. Kennedy, Souter, Brennan, Thomas, et. al. have been put forth as examples why. The implication being that if this process is infallible, you should be using some other, better process to determine who is qualified to be a Supreme Court Justice.
I agree with you completely, by the way. There is a pretty strong argument that Thomas is the way he is as a direct result of the prejudice he had to work so hard to overcome.
Just to make a minor point about Thomas: There has been some chatter about the irrelevance of background considering Thomas' ultra conservative ideology. I don't think there is a significant disconnect there. His background has clearly had an impact on his judicial rulings.
Take the most obvious example: Affirmative Action. Justice Thomas is motivated by what I will charitably call 'passion' in his arguments that Affirmative Action based on race creates a negative perception about the person who receives it and therefore harms the minority, rather than helping them. He has argued that because Affirmative Action exists, brilliant minorities must suffer the stigma and lifelong scorn of people who view their accomplishments as illegitimate.
This, despite the fact that Clarence Thomas unquestionably benefited from Affirmative Action in his own education. Or rather, because he has benefited from it, he resents it and believes that he is doggedly pursued by the perception of inadequacy that it confers on him.
I do not think that without Justice's Thomas' personal experience with Affirmative Action, he would write concurring opinions like the one in Fisher v U. of Austin (2013, the first rodeo) where he compared the University's argument that it has a compelling interest to promote diversity in its student body to the arguments of slaveowners and segregationists that black people were better off oppressed. That is one hell of an extreme comparison, but it stems from his belief that any and all classifications based on race are inherently injurious regardless of whether the status quo is even more injurious, and thoroughly disregarding the fact that slavery and segregation were the status quo. It goes far beyond the argument that AA is a blunt and imperfect tool. It's really something!
read it here (Thomas doesn't write long opinions so read it all if you like, but Part III Sec A is the main part I'm referring to): https://www.oyez.org/cases/2012/11-345
Without ever considering that the perception of inadequacy may doggedly pursue him due to his inadequacy.
Clarence Thomas, the best argument against affirmative action.
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ResIpsaLoquiturNot a grammar nazi, just alt-write.Registered Userregular
edited February 2016
I want to offer some perspective on the problem of "qualifications" as an absolute value. To do so, please indulge a personal account.
I'm a local attorney (though at the moment I'll refrain from being any more detailed than that), and I practice family law. I have my state license, but I haven't bothered with a federal license because it is exceedingly, exceedingly unlikely that I will ever have a family law case that hits a federal court. When it comes to family law, most issues boil down--one way or another--to what serves "the best interest of the child." There is a body of law--including a few Supreme Court cases--that speaks to the question, but it is not well defined, at least not objectively so. This is because--and the appeals courts all recognize this--that the question of what serves the best interests of the child is a very "in the trenches" sort of question; in other words, there are so many variables that it would not be appropriate for a purely objective standard, and judges must be trusted to generally make the right decision in the moment.
As an aside:
I would be surprised if the current Supreme Court, as comprised, ever had to handle a family law issue as an attorney or judge prior to their tenure on the Court. Because the Court reviews only cases with Federal Constitutional questions (with limited exception), there's actually a pretty broad body of law that won't get covered but maybe once every couple of decades, or less. This isn't meant to contribute to any point, just an observation.
In my local courthouse, we have a number of different judges that I practice in front of. They all have fairly similar backgrounds educationally, and all have some mix of practical legal experience. I'm going to share a detail that makes each stand out (I've edited this to be a little more vague for reasons which I hope are obvious), based on a mix of personal experience and reputation among the local bar:
- Very blue collar attitude.
- Tends to come down hard against those who don't seek treatment for drug/alcohol abuse.
- Writes very detailed, thorough findings, but is very overcautious.
- Handles most of the non-family/non-small claims civil caseload. Has the most emotional distance from family cases.
- Developed a reputation for discounting or outright denying awards of attorney fees when other judges would permit them.
- Extreme micromanager, for both better and worse.
Some people find this problematic, because it feels like "justice" is a crapshoot. I understand the argument: if my client had untreated history of alcoholism, but otherwise was a hard working, full time (or more) member of a local union, I might get different results from one judge or another. I do know, at least, that they're all acting in good faith.
That variety, however, is the great equalizer. We don't get to predict which judge will be assigned prior to a case, and it's a great deal better to have a chance at a sympathetic judge rather than all the judges being the same and knowing for sure that your client is screwed. It also keeps active the conversation of what can be done toward making sure decisions are more consistent, and how that can even be achieved when there's as many factors to be weighed in family cases.
If all of the judges were more or less coming from the same place, we'd have more consistency, sure, but there's no question that a class of people would be disadvantaged as a result. The variety keeps alive the conversation of justice, and that is incredibly important. I can only imagine it's just as important with the highest Court of the land. If we recognize that more than one answer can be reached in good faith, the variety is even more essential.
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The thing about Thomas and Affirmative Action is, if you dig down enough, he may not be wrong. I personally would like to live in a world where AA isn't necessary. Along with other issues.
But we don't live there. And without it, some would be screwed even harder. If Thomas has an issue with his own inadequacies, real or not, then he should seek therapy for it and not fuck around with other people willing to take that help and do something good with it.
The thing about Thomas and Affirmative Action is, if you dig down enough, he may not be wrong. I personally would like to live in a world where AA isn't necessary. Along with other issues.
But we don't live there. And without it, some would be screwed even harder. If Thomas has an issue with his own inadequacies, real or not, then he should seek therapy for it and not fuck around with other people willing to take that help and do something good with it.
If he's right and AA props up structural views of inadequacy, then the stakes are higher than "Justice Thomas feels bad, abloobloo"
I don't think he's right, but you haven't provided a solution to his worries. It's not his personal insecurities that are the root of the problem, it's the question of whether special consideration sets up a particular social dynamic that harms those it is intended to help.
I don't think that it's an insane thing to think, it's reasonable (though I think probably wrong)
"The only way to get rid of a temptation is to give into it." - Oscar Wilde
"We believe in the people and their 'wisdom' as if there was some special secret entrance to knowledge that barred to anyone who had ever learned anything." - Friedrich Nietzsche
The thing about being against Affirmative Action, is that either you are utterly ignorant of reality, or don't care about systemic bigotry that exists in almost all levels of society.
The moment someone gives me a better idea, i'll support it, but until then, AA it is.
The thing about Thomas and Affirmative Action is, if you dig down enough, he may not be wrong. I personally would like to live in a world where AA isn't necessary. Along with other issues.
But we don't live there. And without it, some would be screwed even harder. If Thomas has an issue with his own inadequacies, real or not, then he should seek therapy for it and not fuck around with other people willing to take that help and do something good with it.
Being right, but only in an imaginary world we don't live in, makes you wrong. Thomas doesn't get a pass on his idiocy just because we might want the world to be different.
I for one WISH that climate change deniers were right, and that the world had an ability to self balance climate that we were nowhere close to actually disrupting. That human greenhouse gas emissions were a drop in the ocean, only worth worrying about in terms of smog and grime in cities, and that all this time worrying about us destroying ourselves by burning fossil fuels was a distraction from our real problems. I wish that were true. But its not, and people who think it are idiots.
Thomas is mistaken to argue that affirmative action is a reason blacks are stigmatized. The worst you could say is that it's not a cure. Minorities are born with a negative perception regardless of affirmative action or not, it's the entire reason affirmative action exists. The fact that affirmative action is not a direct remedy is not in any way an indictment of its positive impact.
Thomas is mistaken to argue that affirmative action is a reason blacks are stigmatized. The worst you could say is that it's not a cure. Minorities are born with a negative perception regardless of affirmative action or not, it's the entire reason affirmative action exists. The fact that affirmative action is not a direct remedy is not in any way an indictment of its positive impact.
The bolded is not inconsistent with Thomas' views as have been reported here. It could be harmful on top of other things that are harmful.
Look, I think that Thomas is wrong, but we have to make sure that we are right for the right reasons.
"The only way to get rid of a temptation is to give into it." - Oscar Wilde
"We believe in the people and their 'wisdom' as if there was some special secret entrance to knowledge that barred to anyone who had ever learned anything." - Friedrich Nietzsche
Do you think Ruth Bader Ginsburg's positions over the years would have been different if she had spent her legal formative years as a corporate lawyer or a prosecutor instead of working with the ACLU?
Maybe? Do you think she'd be biased toward supporting a female petitioner in a case because she's a woman? How is that different from saying that a gay Justice would be more sympathetic to gay rights in his decisions?
Ones experiences are far too often brought up with a pejorative or otherwise negative connotation. "Well that judge is gay, so of course they ruled with the gays!"
But a breadth and depth of experience, a variety of backgrounds (life, work, social, etc) is a benefit. People are not created in a vacuum, and as much as I might appreciate when people can see other perspectives in a fashion that allows them to make decisions outside their areas of experience and expertise, having innate experience is still useful for bringing those potential ramifications and considerations up front for debate.
Yes, whomever is presenting a given case should be doing that as much as possible anyway, but having diversity (scary word!) in the pool of people making these choices that affect hundreds of millions of people in the US (and potentially hundreds of millions more, as these choices can affect visitors and potential immigrants as well).
I think having women and gays and minorities and whatnot represented *as is feasible* is a worthwhile goal. No, not in an 'omg affirmative action' sense, nor because they'll 'side with their kind', nor because we should somehow try to find a perfect melting pot of humans that manages to cover the exact racial/orientation/gender/etc breakdown of the US in 9 people (though this would be funny as hell to see attempted).
But having diversity is beneficial. Perhaps I'm going to be challenged stating that as a declarative, but everything I've read over the years about business and politics leads me to think that, so I apologize if that's a bit of an abrupt point.
If given 50 candidates, whom are all equally acceptable on their resume, *some* criteria must be used to choose one, and maybe this makes me a bleeding heart liberal (among many other things), but I think if half of them where somehow representative of groups other than "cis het white male", which we've been pretty good on in political pools for a long time, there could be a benefit found there.
I wouldn't say "no white males, seriously fuck us guys", but 1 position and dozens of applicants, there's going to need to be a decision made somehow.
Thomas isn't completely incorrect about the effects of AA. At best AA is a net good. It's not "all good" and there is certainly a stigma, one need only spend 5 seconds listening to right wing people talk about minorities to realize this fact.
The language he used, slavery etc. is ridiculous of course. But the stigma he describes is certainly a thing that actually happens. You could argue that the stigma would still be there without AA, just different insults slung and I'd probably agree. But as far as AA being a reason that blacks are stigmatized? Yes, it is one of the reasons.
Thomas isn't completely incorrect about the effects of AA. At best AA is a net good. It's not "all good" and there is certainly a stigma, one need only spend 5 seconds listening to right wing people talk about minorities to realize this fact.
The language he used, slavery etc. is ridiculous of course. But the stigma he describes is certainly a thing that actually happens. You could argue that the stigma would still be there without AA, just different insults slung and I'd probably agree. But as far as AA being a reason that blacks are stigmatized? Yes, it is one of the reasons.
Ofcourse, now they are stigmatized for only getting jobs due to being black.
Before they were stigmatized as too stupid/lazy/dishonest to be allowed to get those jobs.
Thomas isn't completely incorrect about the effects of AA. At best AA is a net good. It's not "all good" and there is certainly a stigma, one need only spend 5 seconds listening to right wing people talk about minorities to realize this fact.
The language he used, slavery etc. is ridiculous of course. But the stigma he describes is certainly a thing that actually happens. You could argue that the stigma would still be there without AA, just different insults slung and I'd probably agree. But as far as AA being a reason that blacks are stigmatized? Yes, it is one of the reasons.
Ofcourse, now they are stigmatized for only getting jobs due to being black.
Before they were stigmatized as too stupid/lazy/dishonest to be allowed to get those jobs.
Instead of being incredibly pithy and uncharitable, follow Thomas' logic train at least a little and arrive at the point which you are glossing over:
The theoretical minority who would have gotten the job regardless wouldn't have had to deal with the latter stigma. They will now have to deal with the former.
It's fine to say "but this is a net good". The insistence on claiming it is a 100% pure as the driven snow no downside everyone wins wonderful awesome thing is dishonest, condescending, and it's a major reason that AA has lost its luster with the public.
Of course, it's much easier to insist that everyone is just so racist and that's why support for AA tanked. It couldn't possibly have anything to do with poor messaging, despite messaging being an area that liberals are fucking terrible at and consistently lose to conservatives on over and over again.
So where Scalia was staying looks like an informal bribe. Hilarious.
That's unpossible because SCOTUS already told us that the only form of corruption is an actual sack of money with a "$" printed on the side that is handed to you by a man with a black hat and nefarious mustache.
Thomas isn't completely incorrect about the effects of AA. At best AA is a net good. It's not "all good" and there is certainly a stigma, one need only spend 5 seconds listening to right wing people talk about minorities to realize this fact.
The language he used, slavery etc. is ridiculous of course. But the stigma he describes is certainly a thing that actually happens. You could argue that the stigma would still be there without AA, just different insults slung and I'd probably agree. But as far as AA being a reason that blacks are stigmatized? Yes, it is one of the reasons.
These people won't be convinced regardless. They'll always find some reason to complain about minorities, if it's not AA it'll be something else.
Thomas isn't completely incorrect about the effects of AA. At best AA is a net good. It's not "all good" and there is certainly a stigma, one need only spend 5 seconds listening to right wing people talk about minorities to realize this fact.
The language he used, slavery etc. is ridiculous of course. But the stigma he describes is certainly a thing that actually happens. You could argue that the stigma would still be there without AA, just different insults slung and I'd probably agree. But as far as AA being a reason that blacks are stigmatized? Yes, it is one of the reasons.
Ofcourse, now they are stigmatized for only getting jobs due to being black.
Before they were stigmatized as too stupid/lazy/dishonest to be allowed to get those jobs.
Instead of being incredibly pithy and uncharitable, follow Thomas' logic train at least a little and arrive at the point which you are glossing over:
The theoretical minority who would have gotten the job regardless wouldn't have had to deal with the latter stigma. They will now have to deal with the former.
It's fine to say "but this is a net good". The insistence on claiming it is a 100% pure as the driven snow no downside everyone wins wonderful awesome thing is dishonest, condescending, and it's a major reason that AA has lost its luster with the public.
Of course, it's much easier to insist that everyone is just so racist and that's why support for AA tanked. It couldn't possibly have anything to do with poor messaging, despite messaging being an area that liberals are fucking terrible at and consistently lose to conservatives on over and over again.
It's not about being pure as driven snow it's giving minorities a bigger chances at opportunities because without it they have much lower chances of getting things like this through actual merit. There are downsides to everything, so what? Our society should still try to get minorities to have more chances to compete on a level playing field.
Yes, liberals lose sometimes - that's not a good reason to stop trying. If liberals did that many people in the country, like minorities and women, would have a tougher time than they are now.
So where Scalia was staying looks like an informal bribe. Hilarious.
That's unpossible because SCOTUS already told us that the only form of corruption is an actual sack of money with a "$" printed on the side that is handed to you by a man with a black hat and nefarious mustache.
Which doesn't count as corruption unless there's a signed document specifying the quid pro quo and everyone gets a proper receipt for the deal.
Shut up, Mr. Burton! You were not brought upon this world to get it!
I want to offer some perspective on the problem of "qualifications" as an absolute value. To do so, please indulge a personal account.
I'm a local attorney (though at the moment I'll refrain from being any more detailed than that), and I practice family law. I have my state license, but I haven't bothered with a federal license because it is exceedingly, exceedingly unlikely that I will ever have a family law case that hits a federal court. When it comes to family law, most issues boil down--one way or another--to what serves "the best interest of the child." There is a body of law--including a few Supreme Court cases--that speaks to the question, but it is not well defined, at least not objectively so. This is because--and the appeals courts all recognize this--that the question of what serves the best interests of the child is a very "in the trenches" sort of question; in other words, there are so many variables that it would not be appropriate for a purely objective standard, and judges must be trusted to generally make the right decision in the moment.
As an aside:
I would be surprised if the current Supreme Court, as comprised, ever had to handle a family law issue as an attorney or judge prior to their tenure on the Court. Because the Court reviews only cases with Federal Constitutional questions (with limited exception), there's actually a pretty broad body of law that won't get covered but maybe once every couple of decades, or less. This isn't meant to contribute to any point, just an observation.
The question of what "the best interests of the child" really means is an interesting one for feminists and libertarians to critique, because first-wave feminists did fight for the idea of a inherent bond between mother and child as a sort of bargaining chip for women's rights, and the resulting tension between gender-neutral relationships and the essentialist presentation of mother-child (de-elevating the father) is only complicated by Obergefell and the advent of gay marriages
Opening shit up for a SCOTUS case revolving precisely around such!
Eddy on
"and the morning stars I have seen
and the gengars who are guiding me" -- W.S. Merwin
They declined to hear the case, rather than providing a favorable ruling.
Calling it a bribe seems a bit premature.
Declining to hear the case, resulted in it staying with the favorable ruling received at a lower court instead. Unless Scalia had no part in the decision to decline.
They declined to hear the case, rather than providing a favorable ruling.
Calling it a bribe seems a bit premature.
Declining to hear the case, resulted in it staying with the favorable ruling received at a lower court instead. Unless Scalia had no part in the decision to decline.
Do they release information on who voted to hear a case?
Either way, this sounds like the kind of case where Scalia would rule for the defendant anyway. Campaign contributions aren't considered bribes by default, so assuming this was a bribe strikes me as an uncharitable reading.
So where Scalia was staying looks like an informal bribe. Hilarious.
That's unpossible because SCOTUS already told us that the only form of corruption is an actual sack of money with a "$" printed on the side that is handed to you by a man with a black hat and nefarious mustache.
makes me mad about Bob Mcdonnell all over again
"and the morning stars I have seen
and the gengars who are guiding me" -- W.S. Merwin
They declined to hear the case, rather than providing a favorable ruling.
Calling it a bribe seems a bit premature.
Declining to hear the case, resulted in it staying with the favorable ruling received at a lower court instead. Unless Scalia had no part in the decision to decline.
He may have made arguments to not hear the case but if four other justices had wanted to they would have regardless of what Scalia wanted. Bribery to avoid hearing a case would require getting six of the justices on board which seems unlikely.
They declined to hear the case, rather than providing a favorable ruling.
Calling it a bribe seems a bit premature.
Declining to hear the case, resulted in it staying with the favorable ruling received at a lower court instead. Unless Scalia had no part in the decision to decline.
SCOTUS declined to hear 99.9% of cases brought before it.
This one wasn't even heard by the circuit court first.
Justices are usually paid indirectly for speeches and visits by having completely subsidized vacations
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
Thomas isn't completely incorrect about the effects of AA. At best AA is a net good. It's not "all good" and there is certainly a stigma, one need only spend 5 seconds listening to right wing people talk about minorities to realize this fact.
The language he used, slavery etc. is ridiculous of course. But the stigma he describes is certainly a thing that actually happens. You could argue that the stigma would still be there without AA, just different insults slung and I'd probably agree. But as far as AA being a reason that blacks are stigmatized? Yes, it is one of the reasons.
Ofcourse, now they are stigmatized for only getting jobs due to being black.
Before they were stigmatized as too stupid/lazy/dishonest to be allowed to get those jobs.
Instead of being incredibly pithy and uncharitable, follow Thomas' logic train at least a little and arrive at the point which you are glossing over:
The theoretical minority who would have gotten the job regardless wouldn't have had to deal with the latter stigma. They will now have to deal with the former.
It's fine to say "but this is a net good". The insistence on claiming it is a 100% pure as the driven snow no downside everyone wins wonderful awesome thing is dishonest, condescending, and it's a major reason that AA has lost its luster with the public.
Of course, it's much easier to insist that everyone is just so racist and that's why support for AA tanked. It couldn't possibly have anything to do with poor messaging, despite messaging being an area that liberals are fucking terrible at and consistently lose to conservatives on over and over again.
I am not pretending that AA is pure perfect always good solution (ie. Clarence Thomas).
But it is the best one we got, hence me asking for a better idea up in this thread.
And the logic train of Thomas's thought leads us to throw lot of people under that train in order to preserve the feelings of few people.
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ChanusHarbinger of the Spicy Rooster ApocalypseThe Flames of a Thousand Collapsed StarsRegistered Userregular
Thomas isn't completely incorrect about the effects of AA. At best AA is a net good. It's not "all good" and there is certainly a stigma, one need only spend 5 seconds listening to right wing people talk about minorities to realize this fact.
The language he used, slavery etc. is ridiculous of course. But the stigma he describes is certainly a thing that actually happens. You could argue that the stigma would still be there without AA, just different insults slung and I'd probably agree. But as far as AA being a reason that blacks are stigmatized? Yes, it is one of the reasons.
Ofcourse, now they are stigmatized for only getting jobs due to being black.
Before they were stigmatized as too stupid/lazy/dishonest to be allowed to get those jobs.
Instead of being incredibly pithy and uncharitable, follow Thomas' logic train at least a little and arrive at the point which you are glossing over:
The theoretical minority who would have gotten the job regardless wouldn't have had to deal with the latter stigma. They will now have to deal with the former.
It's fine to say "but this is a net good". The insistence on claiming it is a 100% pure as the driven snow no downside everyone wins wonderful awesome thing is dishonest, condescending, and it's a major reason that AA has lost its luster with the public.
Of course, it's much easier to insist that everyone is just so racist and that's why support for AA tanked. It couldn't possibly have anything to do with poor messaging, despite messaging being an area that liberals are fucking terrible at and consistently lose to conservatives on over and over again.
I am not pretending that AA is pure perfect always good solution (ie. Clarence Thomas).
But it is the best one we got, hence me asking for a better idea up in this thread.
And the logic train of Thomas's thought leads us to throw lot of people under that train in order to preserve the feelings of few people.
i think you two might be arguing past each other
from what i can tell jeeps is arguing that AA is not perfect and Thomas is not completely off-base in his criticism of it, though his comparison to slavery is ridiculous
and you are arguing AA is not perfect but we shouldn't let perfect be the enemy of good
Justices shouldn't be accepting anything from anyone they have a likely legal relationship with. We pay them more than enough to pay for their own damned vacations.
Justices shouldn't be accepting anything from anyone they have a likely legal relationship with. We pay them more than enough to pay for their own damned vacations.
They are likely to have a legal relationship with every citizen of the US. That's not really practical.
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Why would you expect anyone to nominate a novice to the highest Court?
Looking at the presidential field, certainly I would. Cruz has an Art History person with no notable international communication or policy background as his top pick for Secretary of State, Trump has openly stated his campaign will put business partners, funders, and friends into the cabinet. Why would the SCOTUS be different?
Yes, in practice.
It doesn't mean you should openly flaunt it as a plus.
Take the most obvious example: Affirmative Action. Justice Thomas is motivated by what I will charitably call 'passion' in his arguments that Affirmative Action based on race creates a negative perception about the person who receives it and therefore harms the minority, rather than helping them. He has argued that because Affirmative Action exists, brilliant minorities must suffer the stigma and lifelong scorn of people who view their accomplishments as illegitimate.
This, despite the fact that Clarence Thomas unquestionably benefited from Affirmative Action in his own education. Or rather, because he has benefited from it, he resents it and believes that he is doggedly pursued by the perception of inadequacy that it confers on him.
I do not think that without Justice's Thomas' personal experience with Affirmative Action, he would write concurring opinions like the one in Fisher v U. of Austin (2013, the first rodeo) where he compared the University's argument that it has a compelling interest to promote diversity in its student body to the arguments of slaveowners and segregationists that black people were better off oppressed. That is one hell of an extreme comparison, but it stems from his belief that any and all classifications based on race are inherently injurious regardless of whether the status quo is even more injurious, and thoroughly disregarding the fact that slavery and segregation were the status quo. It goes far beyond the argument that AA is a blunt and imperfect tool. It's really something!
read it here (Thomas doesn't write long opinions so read it all if you like, but Part III Sec A is the main part I'm referring to): https://www.oyez.org/cases/2012/11-345
NNID: Hakkekage
I agree with you completely, by the way. There is a pretty strong argument that Thomas is the way he is as a direct result of the prejudice he had to work so hard to overcome.
Clarence Thomas, the best argument against affirmative action.
I'm a local attorney (though at the moment I'll refrain from being any more detailed than that), and I practice family law. I have my state license, but I haven't bothered with a federal license because it is exceedingly, exceedingly unlikely that I will ever have a family law case that hits a federal court. When it comes to family law, most issues boil down--one way or another--to what serves "the best interest of the child." There is a body of law--including a few Supreme Court cases--that speaks to the question, but it is not well defined, at least not objectively so. This is because--and the appeals courts all recognize this--that the question of what serves the best interests of the child is a very "in the trenches" sort of question; in other words, there are so many variables that it would not be appropriate for a purely objective standard, and judges must be trusted to generally make the right decision in the moment.
As an aside:
In my local courthouse, we have a number of different judges that I practice in front of. They all have fairly similar backgrounds educationally, and all have some mix of practical legal experience. I'm going to share a detail that makes each stand out (I've edited this to be a little more vague for reasons which I hope are obvious), based on a mix of personal experience and reputation among the local bar:
- Very blue collar attitude.
- Tends to come down hard against those who don't seek treatment for drug/alcohol abuse.
- Writes very detailed, thorough findings, but is very overcautious.
- Handles most of the non-family/non-small claims civil caseload. Has the most emotional distance from family cases.
- Developed a reputation for discounting or outright denying awards of attorney fees when other judges would permit them.
- Extreme micromanager, for both better and worse.
Some people find this problematic, because it feels like "justice" is a crapshoot. I understand the argument: if my client had untreated history of alcoholism, but otherwise was a hard working, full time (or more) member of a local union, I might get different results from one judge or another. I do know, at least, that they're all acting in good faith.
That variety, however, is the great equalizer. We don't get to predict which judge will be assigned prior to a case, and it's a great deal better to have a chance at a sympathetic judge rather than all the judges being the same and knowing for sure that your client is screwed. It also keeps active the conversation of what can be done toward making sure decisions are more consistent, and how that can even be achieved when there's as many factors to be weighed in family cases.
If all of the judges were more or less coming from the same place, we'd have more consistency, sure, but there's no question that a class of people would be disadvantaged as a result. The variety keeps alive the conversation of justice, and that is incredibly important. I can only imagine it's just as important with the highest Court of the land. If we recognize that more than one answer can be reached in good faith, the variety is even more essential.
But we don't live there. And without it, some would be screwed even harder. If Thomas has an issue with his own inadequacies, real or not, then he should seek therapy for it and not fuck around with other people willing to take that help and do something good with it.
If he's right and AA props up structural views of inadequacy, then the stakes are higher than "Justice Thomas feels bad, abloobloo"
I don't think he's right, but you haven't provided a solution to his worries. It's not his personal insecurities that are the root of the problem, it's the question of whether special consideration sets up a particular social dynamic that harms those it is intended to help.
I don't think that it's an insane thing to think, it's reasonable (though I think probably wrong)
"We believe in the people and their 'wisdom' as if there was some special secret entrance to knowledge that barred to anyone who had ever learned anything." - Friedrich Nietzsche
The moment someone gives me a better idea, i'll support it, but until then, AA it is.
Being right, but only in an imaginary world we don't live in, makes you wrong. Thomas doesn't get a pass on his idiocy just because we might want the world to be different.
I for one WISH that climate change deniers were right, and that the world had an ability to self balance climate that we were nowhere close to actually disrupting. That human greenhouse gas emissions were a drop in the ocean, only worth worrying about in terms of smog and grime in cities, and that all this time worrying about us destroying ourselves by burning fossil fuels was a distraction from our real problems. I wish that were true. But its not, and people who think it are idiots.
The bolded is not inconsistent with Thomas' views as have been reported here. It could be harmful on top of other things that are harmful.
Look, I think that Thomas is wrong, but we have to make sure that we are right for the right reasons.
"We believe in the people and their 'wisdom' as if there was some special secret entrance to knowledge that barred to anyone who had ever learned anything." - Friedrich Nietzsche
Ones experiences are far too often brought up with a pejorative or otherwise negative connotation. "Well that judge is gay, so of course they ruled with the gays!"
But a breadth and depth of experience, a variety of backgrounds (life, work, social, etc) is a benefit. People are not created in a vacuum, and as much as I might appreciate when people can see other perspectives in a fashion that allows them to make decisions outside their areas of experience and expertise, having innate experience is still useful for bringing those potential ramifications and considerations up front for debate.
Yes, whomever is presenting a given case should be doing that as much as possible anyway, but having diversity (scary word!) in the pool of people making these choices that affect hundreds of millions of people in the US (and potentially hundreds of millions more, as these choices can affect visitors and potential immigrants as well).
I think having women and gays and minorities and whatnot represented *as is feasible* is a worthwhile goal. No, not in an 'omg affirmative action' sense, nor because they'll 'side with their kind', nor because we should somehow try to find a perfect melting pot of humans that manages to cover the exact racial/orientation/gender/etc breakdown of the US in 9 people (though this would be funny as hell to see attempted).
But having diversity is beneficial. Perhaps I'm going to be challenged stating that as a declarative, but everything I've read over the years about business and politics leads me to think that, so I apologize if that's a bit of an abrupt point.
If given 50 candidates, whom are all equally acceptable on their resume, *some* criteria must be used to choose one, and maybe this makes me a bleeding heart liberal (among many other things), but I think if half of them where somehow representative of groups other than "cis het white male", which we've been pretty good on in political pools for a long time, there could be a benefit found there.
I wouldn't say "no white males, seriously fuck us guys", but 1 position and dozens of applicants, there's going to need to be a decision made somehow.
O.O
... Squatty Potty Unicorn for SCOTUS?
The language he used, slavery etc. is ridiculous of course. But the stigma he describes is certainly a thing that actually happens. You could argue that the stigma would still be there without AA, just different insults slung and I'd probably agree. But as far as AA being a reason that blacks are stigmatized? Yes, it is one of the reasons.
Before they were stigmatized as too stupid/lazy/dishonest to be allowed to get those jobs.
Instead of being incredibly pithy and uncharitable, follow Thomas' logic train at least a little and arrive at the point which you are glossing over:
The theoretical minority who would have gotten the job regardless wouldn't have had to deal with the latter stigma. They will now have to deal with the former.
It's fine to say "but this is a net good". The insistence on claiming it is a 100% pure as the driven snow no downside everyone wins wonderful awesome thing is dishonest, condescending, and it's a major reason that AA has lost its luster with the public.
Of course, it's much easier to insist that everyone is just so racist and that's why support for AA tanked. It couldn't possibly have anything to do with poor messaging, despite messaging being an area that liberals are fucking terrible at and consistently lose to conservatives on over and over again.
So where Scalia was staying looks like an informal bribe. Hilarious.
pleasepaypreacher.net
That's unpossible because SCOTUS already told us that the only form of corruption is an actual sack of money with a "$" printed on the side that is handed to you by a man with a black hat and nefarious mustache.
These people won't be convinced regardless. They'll always find some reason to complain about minorities, if it's not AA it'll be something else.
It's not about being pure as driven snow it's giving minorities a bigger chances at opportunities because without it they have much lower chances of getting things like this through actual merit. There are downsides to everything, so what? Our society should still try to get minorities to have more chances to compete on a level playing field.
Yes, liberals lose sometimes - that's not a good reason to stop trying. If liberals did that many people in the country, like minorities and women, would have a tougher time than they are now.
Calling it a bribe seems a bit premature.
Which doesn't count as corruption unless there's a signed document specifying the quid pro quo and everyone gets a proper receipt for the deal.
You might find this article interesting: http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1079&context=clrcircuit
The question of what "the best interests of the child" really means is an interesting one for feminists and libertarians to critique, because first-wave feminists did fight for the idea of a inherent bond between mother and child as a sort of bargaining chip for women's rights, and the resulting tension between gender-neutral relationships and the essentialist presentation of mother-child (de-elevating the father) is only complicated by Obergefell and the advent of gay marriages
Opening shit up for a SCOTUS case revolving precisely around such!
and the gengars who are guiding me" -- W.S. Merwin
It's a very good reason to examine why you lost and what didn't work or went wrong.
Declining to hear the case, resulted in it staying with the favorable ruling received at a lower court instead. Unless Scalia had no part in the decision to decline.
Do they release information on who voted to hear a case?
Either way, this sounds like the kind of case where Scalia would rule for the defendant anyway. Campaign contributions aren't considered bribes by default, so assuming this was a bribe strikes me as an uncharitable reading.
makes me mad about Bob Mcdonnell all over again
and the gengars who are guiding me" -- W.S. Merwin
Just because they didn't stay bribed doesn't change things.
He may have made arguments to not hear the case but if four other justices had wanted to they would have regardless of what Scalia wanted. Bribery to avoid hearing a case would require getting six of the justices on board which seems unlikely.
SCOTUS declined to hear 99.9% of cases brought before it.
This one wasn't even heard by the circuit court first.
But hey, gawker gonna gawker.
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
I am not pretending that AA is pure perfect always good solution (ie. Clarence Thomas).
But it is the best one we got, hence me asking for a better idea up in this thread.
And the logic train of Thomas's thought leads us to throw lot of people under that train in order to preserve the feelings of few people.
i think you two might be arguing past each other
from what i can tell jeeps is arguing that AA is not perfect and Thomas is not completely off-base in his criticism of it, though his comparison to slavery is ridiculous
and you are arguing AA is not perfect but we shouldn't let perfect be the enemy of good
They are likely to have a legal relationship with every citizen of the US. That's not really practical.