Wednesday, July 22, 2009

An Answer to a Comment.

I want to answer to a commenter on a recent post about Supreme Court Nominee Sonia Sotomayor.  This is an argument that my readers might be interested in.  First, let me say that Rightardia followed our comment rules and made his point rationally and this is a good debate, so I will leave his comments here for all to review.  Thank you Rightardia for your comments.  By the way I will link his blog so that the readers here can see an opposing view if they like.  The comments are below, but before we get to Sotomayor, let me correct some things that were said.  First, "The Conservative Majority" is not a misnomer because according to polls done as late a July 15th a majority of Americans consider themselves  to have become more conservative than liberal.  Refer to this article from (link)   A July 15th Poll from the same site has these results.

                     40% consider themselves conservative
                     35% consider themselves Moderate
                     21% consider themselves Liberal.

Second, I could care less about the ABA ranking as the ABA has been very inconsistent over the years in who they give their highest ranking to.

Third, I realize that Sotomayor will be confirmed, but I doubt if it will be by 75.  I still contend that this is a nomination that should be fought simply because of Sotomayor's legal aptitude.

On her record, of the decisions that have been reviewed by higher courts, including the Supreme Court, her record is as follows:

Overturned - 8
Upheld with Bias by the court (which means that they disagreed with her statutory reasoning) - 2
Upheld 2

66% of her reviewed cases have been overturned.  That does give her one of the higest overturn rates of any sitting judge.  Of the four that were upheld, two held at fault her judicial reasoning behind the decision.  Is that the type of Justice we need on the bench?

The cases are listed below.  I stand by my post, these are my facts.

Rightardia said...

    Sotomayor will be confirmed. Ge over it. She is replacing a center left justice who is retiring so the change on the court is a wash. All the GOP is trying to do is activate their base.

    If one of the conservative justices retires in the next 3.5 years, a real fight will s art because it will threaten the 5-4 conservative majority. You post is 'much ado about nothing.'
    July 21, 2009 4:53 PM

Carl said...

    You are absolutely wrong. She is replacing a an almost far left justice who had the distinction of being appointed by a center right Republican President. The responsibilities of the Supreme Court and how they affect our Constitutional liberties is much ado about everything. This Justice is far to the left of who she will replace, and her incompetence as judge is reflected in the fact that she is one of the most overturned judges on the federal bench. I wonder if she, the "Constitutional law professor" who has appointed her, or any other Democrat in Washington has even bothered reading the Constitution.
July 21, 2009 6:50 PM
Rightardia said...

    Check Intrade. Sixty five per cent of Intraders expect her to get 75 votes. You are misinformed about Sotomayor's judicial record. She has been overturned by the Supremes less than her peers.

    She also got the ABA highest rating. Where do you get your information--Rush? He isn't a journalist and doesn't have a degree.

    BTW the term 'conservative majority is a misnomer. You are the minority.
    July 22, 2009 5:09 AM

Cases Reviewed by the Supreme Court

• Ricci v. DeStefano 530 F.3d 87 (2008) -- decision pending as of 5/26/2009 (OVER Turned)

• Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007) -- reversed 6-3 (Dissenting: Stevens, Souter, Ginsburg)

• Knight vs. Commissioner, 467 F.3d 149 (2006) -- upheld, but reasoning was unanimously faulted*

• Dabit vs. Merrill Lynch, 395 F.3d 25 (2005) -- reversed 8-0

• Empire Healthchoice Assurance, Inc. vs. McVeigh, 396 F.3d 136 (2005) -- Upheld 5-4 (Dissenting: Breyer, Kennedy, Souter, Alito)

• Malesko v. Correctional Services Corp., 299 F.3d 374 (2000) -- reversed 5-4 (Dissenting: Stevens, Souter, Ginsburg, Breyer)

• Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997) -- reversed 7-2 (Dissenting: Stevens, Breyer)

• Affirmative Action (New Haven firefighter case): Sotomayor was part of a three-judge panel that ruled in February 2008 to uphold a lower court decision supporting the City of New Haven's decision to throw out the results of an exam to determine promotions within the city's fire department. Only one Hispanic and no African-American firefighters qualified for promotion based on the exam; the City subsequently decided not to certify the results and issued no promotions. In June 2008, Sotomayor was part of a 7-6 majority to deny a rehearing of the case by the full court. The Supreme Court agreed to review the case and heard oral arguments in April 2009. Ricci v. DeStefano 530 F.3d 87 (2008)

• Environment (Protection of fish at power plants): Sotomayor, writing for a three-judge panel, ruled that the Environmental Protection Agency may not engage in a cost-benefit analysis in implementing a rule that the "best technology available" must be used to limit the environmental impact of power plants on nearby aquatic life. The case involved power plants that draw water from lakes and rivers for cooling purposes, killing various fish and aquatic organisms in the process. Sotomayor ruled that the "best technology" regulation did not allow the EPA to weigh the cost of implementing the technology against the overall environmental benefit when issuing its rules. The Supreme Court reversed Sotomayor's ruling in a 6-3 decision, saying that Sotomayor's interpretation of the "best technology" rule was too narrow. Justices Stevens, Souter, and Ginsburg dissented, siding with Sotomayor's position. Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007)

•* Taxes (Deductability of trust fees): In 2006, Sotomayor upheld a lower tax court ruling that certain types of fees paid by a *trust are only partly tax deductable. The Supreme Court upheld Sotomayor's decision but unanimously rejected the reasoning she adopted, saying that her approach "flies in the face of the statutory language." Knight vs. Commissioner, 467 F.3d 149 (2006)

• Finance (Rights of investors to sue firms in state court): In a 2005 ruling, Sotomayor overturned a lower court decision and allowed investors to bring certain types of fraud lawsuits against investment firms in state court rather than in federal court. The lower court had agreed with the defendant Merrill Lynch's argument that the suits were invalid because the Securities Litigation Uniform Standards Act of 1998 required that such suits be brought only in federal court. The Supreme Court unanimously overturned Sotomayor's ruling in an 8-0 decision, saying that the federal interest in overseeing securities market cases prevails, and that doing otherwise could give rise to "wasteful, duplicative litigation." Dabit vs. Merrill Lynch, 395 F.3d 25 (2005)

• Health Insurance (Reimbursement of insurance benefits): In 2005, Sotomayor ruled against a health insurance company that sued the estate of a deceased federal employee who received $157,000 in insurance benefits as the result of an injury. The wife of the federal employee had won $3.2 million in a separate lawsuit from those whom she claimed caused her husband's injuries. The health insurance company sued for reimbursement of the benefits paid to the federal employee, saying that a provision in the federal insurance plan requires paid benefits to be reimbursed when the beneficiary is compensated for an injury by a third party. The Supreme Court upheld Sotomayor's ruling in a 5-4 opinion. Justices Breyer, Kennedy, Souter, and Alito dissented. Empire Healthchoice Assurance, Inc. vs. McVeigh, 396 F.3d 136 (2005)

• Civil Rights (Right to sue federal government and its agents): Sotomayor, writing for the court in 2000, supported the right of an individual to sue a private corporation working on behalf of the federal government for alleged violations of that individual's constitutional rights. Reversing a lower court decision, Sotomayor found that an existing law, known as "Bivens," which allows suits against individuals working for the federal government for constitutional rights violations, could be applied to the case of a former prisoner seeking to sue the private company operating the federal halfway house facility in which he resided. The Supreme Court reversed Sotomayor's ruling in a 5-4 decision, saying that the Bivens law could not be expanded to cover private entities working on behalf of the federal government. Justices Stevens, Souter, Ginsburg, and Breyer dissented, siding with Sotomayor's original ruling. Malesko v. Correctional Services Corp., 299 F.3d 374 (2000)

• Intellectual Property (Distribution of freelance material): As a district court judge in 1997, Sotomayor heard a case brought by a group of freelance journalists who asserted that various news organizations, including the New York Times, violated copyright laws by reproducing the freelancers' work on electronic databases and archives such as "Lexis/Nexis" without first obtaining their permission. Sotomayor ruled against the freelancers and said that publishers were within their rights as outlined by the 1976 Copyright Act. The appellate court reversed Sotomayor's decision, siding with the freelancers, and the Supreme Court upheld the appellate decision (therefore rejecting Sotomayor's original ruling). Justices Stevens and Breyer dissented, taking Sotomayor's position. Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997)


  1. This is what Wikipedia says: The Supremes reviewed 5 reversing 3 and affirmed two, a typical percentage of reverals. ABA Journal considers her a political centrist.

    You are exaggerating Sotomayor's long record. The terms liberal and conservative are abstractions. Media matters says 44 per cent of Americans are moderate. 34 per cent conservative and 22 per cent liberal. A strong majority favors progressive positions on an number of issues. See

    The problem with the GOP is 6 of 10 are far right and the GOP has lost the center that voted Democratic in 2008. If it stays in ditto head land it will become a regional party with permanent minority status. Conservative just isn't cool anymore.

    The title of your blog reminded me of Nixon's Silent Majority. People inside the Nixon adminstration knew they did not represent the Aemrican majority.

  2. Media matters is no legitimate source for documentation because, and I quote this from their website, they are a "progressive research and information center dedicated to comprehensively monitoring, analyzing, and correcting conservative misinformation in the U.S. media." They certainly are no unbiased. If I choose a poll to follow, I believe Gallup to be a more reliable source. Just a personal reflection on the Gallup poll I cited, I travel extensively throughout the southeast from Virgina to Florida, and over to Mississippi. Of the people I meet the percentages are probably closer to 55%. I work for a retail chain, so the people I meet are "John Q public". This is not an official poll, just a personal observation. As for her record. I documented the cases that she was reviewed on and that were reversed. Those are part of the public record and not an exaggeration Look them up. Remember Wikipedia is reader edited. It is far from a complete source for information.

    On a personal note, thanks for the debate. You didn't sway me, but it is refreshing to have someone on the other side of me politically that can make their case civilly. Thank you.

  3. As a life long Democrat and and being of Spanish decent myself, I personally feel her nomination by Obama, was clearly due to her race and nothing to do with her qualifications. Yes, she was qualified but the most qualified and best choice? Not at all.

    In case some of you don't remember, the Spanish community had lashed out at Obama and his administration, quite often before her nomination, stating that Obama had not filled his cabinet with enough Spanish nominees.

    Obama and his administration, also knew that by nominating Sotomayor, he would place the Republicans in a very tough spot. Even though 'Conservatives' and 'moderates' knew she was not the most qualified choice and also picked soley for her race, nobody could really challenge her, without taking a huge political hit.

    That's the name of the political game these days and it's become a very sad game. Whatever happened to picking the "MOST" qualified candidates?

    Obama has made a lot of rookie mistakes and serious mis-judgments with his nominations and economical spending decisions. At this rate, the Democrats will be losing the house, the senate soon and the WH in 2012. They are doing it to themselves and with the help of Pelosi and waxman, their parties downfall is inevitable.

    If a third party can get a strong "conservative" candidate on the ticket in 2012, who loves the Constitution and our Country, we may finally all get some real "Change" for once.

    The 2 party system, hasn't had our best interests in mind and in their hearts, for way too long. That's where my vote will be in 2012.

  4. Was Clarence Thomas,a man who rarely writes an opinion, the best man for a Supreme Court? Politics are always involved in these selections.

    Regarding the political mix in the US, the terms conservative, liberal and moderate are abstractions in the shifting sands of polling.

    If we do in fact have a conservative majority, how did the Democrats win the the presidency, the House and Senate in 2008? One in five Democrats is conservative, but they rarely vote Republican. What happened to all those Reagan Democrats?

    Progressive Studies Program at the Center for American Progress break down the electorate on a new 5-point scale of political ideology that reflects the primary approaches people ascribe to today. Under this schematic, 34 percent of the country self-identifies as ‘conservative’, 29 percent as ‘moderate’, 15 percent as ‘liberal’, 16 percent as ‘progressive’, and 2 percent as ‘libertarian’.

    To see the complete Rightardia response, go to

  5. The Democrats won the Presidency and the Congress because the Republican leadership and President Bush spent like Democrats, grew government like Democrats, and left their fiscal conservative platform. In short they offered no alternative to the Democratic party. The democrats certainly did not win congress because of their popularity as congress consistently polled lower approval ratings than President Bush. Ratings, i might add, that dropped even with Democrats in control. That is why I am a conservative first, before any political affiliation. Again I will stand by the Gallup poll. I do not put stock in "progressive" polls as that is a key word for liberal.
    Moderate, liberal, and conservative are not abstractions, they are distinctions. As for those Reagan Democrats, of which I was one until the party took a hard left turn. They needed a weak, incompetent President like Jimmy Carter who lost jobs, presided over a terrible economy, and appeared weak in his decision making to prompt them to break ranks and vote for a Republican. They have their new Jimmy Carter, and they are beginning to break ranks. The health care reform bill is the first evidence and their will be more. Call them blue dogs or Reagan Democrats, they are the same.
    By the way, The opinions of Clarence Thomas are also part of the public record. Try reading them. They show a clear mastery of understanding as far as the original intent of the framers of the Constitution and the purpose of the Constitution as an affirmation of positive liberties and protections against an invasive government.


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