Well, don’t keep us in suspense – describe those circumstances, please.
And have fun in the Gulf.
Instances of so-called voluntary segregation, where demographics alone determine the racial composition of a school, come to mind. If, for example, a town near the Texas-Mexico border is nearly 100% Hispanic, the 14th Amendment certainly doesn’t require those parents to ship their students off to school in the nearest white suburbia 100 miles away, or vice versa. In that case, “separate” certainly does not make the school “unequal” (though any number of other factors might make it so).
More hypothetically speaking, I could see some judges approving single-race school programs, if those programs were intended to benefit the a disadvantaged racial group and were actually demonstrated to be beneficial to them. I would certainly be opposed to something like that, but it’s not like discrimination in favor of a disadvantaged group is absolutely verboten in constitutional jurisprudence. In that case, “separate” would be the means of making things “equal.”
Like I said, I’m not actually defending the merits of that second hypothetical, but it is at least an arguable legal position.
[sub]3-4 ft. seas . . . I’m gonna be puking my guts out when I’m not in the water. These sharks better be awful damn photogenic.[/sub]
The first hypothetical is inappropriate: the 14th amendment – the basis for both Brown and Plessy – requires state action for a constitutional challenge. Thus, mere racial separation due to residential patterns, with nothing else, would not trigger Brown or Plessy.
N.B.: the busing decisions of the late 60’s and early '70s were premised on court-ordered busing as a remedy for prior de jure segregation – though the court would often twist itself into knots to find such prior discrimination; see, e.g., Keyes v. School District #1, Denver, Colorado, 413 US 189 (1973), in which the Supreme Court piles the bullshit on in record quantity.
As to the second example – that would effectively require overturning Brown, since Brown’s basic holding is that separate school systems which are equal in tangible measures are nonetheless unequal due to the pyschological impact on blacks. If you were to prove that segregation was in fact good for blacks pyschologically, you take away the basis for the whole opinion. (This, of course, is a real flaw in Brown’s reasoning: it is, in theory, susceptible to overturning based on changes in our understanding of the human psyche).
I’m not forgetting state action. As you point out, courts have been more than willing to find state action in population patterns, where virtually any indication of state policy is (or at least was) enough to get your school district popped with a desegregation order. State action was virtually an afterthought in those cases.
Well, obviously the court can bullshit its way to whatever result it wants – in which case, what the rule is or what the facts are is wholly irrelevant. I was taking your hypo as given: no prior state discrimination, just the fact of segregative resdential patterns.
And shouldn’t you be on a plane already? 
Driving. Boat loads at 9:00. I’m out of here as soon as NOAA releases its 2:30 seas forecast.
C’mon, 2-3 ft . . .
The title of this post was acurate, all else is distorted. The distortion is obviously inentional by the Heritage Foundation writer and editors, but might be simple ignorance on december’s part. I don’t really have time to join the substantive debate on the proper role for judicial activism in a civil society, but I could not allow this particular piece of selective sampling to go unchallenged.
Simply incorrect. The author’s of your cite choose to argue for “dramatic change” by comparing to the acticities of the first 2 years of previous administrations. How interesting. I wonder what happens if we instead compare to the finalo years of the Clinton administration–you know, the period immediately proceeding the supposed “dramatic change”.
An attempt to paint the current judicial gridlock as a unique occurence and a dramatic departure from previous Senate judicial reviews. It does so by ignoring the record of the Republican controlled Senate during the finsl years of Clinton’s Presidency.
Here is an article from the other side of the ideological spectrum. As with the Heritage Foundation, it cannot be relied upon for unbiased selection, but I have no reason to think that the reported facts are inaccurate. Here are a few of those facts:
[ul][li]The slowdown began in 1995 after Republicans took the majority in the Senate. Senate leaders’ failure to allow nominees to come up for a vote was so extensive that it drew unusual criticism from Chief Justice William Rehnquist in late 1997. [/li][li]Then-Senate Majority Leader Trent Lott was quite blunt in 1998. “Should we take our time on these federal judges?” Lott asked rhetorically. “Yes. Do I have any apologies? Only one: I probably moved too many already.” [/li][li]During the first half of 1999, the Senate Judiciary Committee did not hold a single confirmation hearing. In fact, the number of hearings dropped from 11 in 1998 to seven in 1999 and eight in 2000. [/li][li]In August, White House counsel Alberto Gonzalez told CNN that the “conduct of the Republican Senators” in delaying and refusing to vote on Clinton nominees was “improper” and “wrong.” [/li][/ul]
Just for fun, I tracked down Gonzalez’ remarks here. Some other highlights:
[ul][li]**“This is a bit of a payback. I can’t argue with some of their [the Democrats’] perceptions.” [/li]
Gonzales noted that some Republican senators placed “holds” on Clinton judicial nominees, denying them a Judiciary Committee hearing or a floor vote for as long as four years.
“That was wrong,” he said. “That’s not right. Part of this is based on the conduct of the Republican senators in the past. We had nothing to do with this problem. But it does affect us.”**[/ul]
Also for fun, I thought perhaps it would be interesting to see how Mr Rehnquist perceptions of the situation match those of the Heritage Foundation. From his 2001 YEAR-END REPORT ON THE FEDERAL JUDICIARY
[ul][li]**I spoke to delays in the confirmation process in my annual report in 1997. Then as now I recognize that part of the problem is endemic to the size of the federal Judiciary. With more judges, there are more retirements and more vacancies to fill. But as I said in 1997, “[w]hatever the size of the federal judiciary, the President should nominate candidates with reasonable promptness, and the Senate should act within a reasonable time to confirm or reject them. Some current nominees have been waiting a considerable time for a Senate Judiciary Committee vote or a final floor vote. The Senate confirmed only 17 judges in 1996 and 36 in 1997, well under the 101 judges it confirmed during 1994.”[/li]
At that time, President Clinton, a Democrat, made the nominations, and the Senate, controlled by the Republicans, was responsible for the confirmation process. Now the political situation is exactly the reverse, but the same situation obtains: the Senate confirmed only 28 judges during 2001. **[/ul]
This is what the folks back at West Point would call, “a lie”.
On this point, I think there is little disagreement. Pretending that this behavior originated with the Democratic response to President Bush’s nominations, though, is a pathetic attempt by conservative politicians and pundits to avoid responsibility for the actions of Lott, Helms, Ashcroft, Imhofe, et al.
When I was parsing my response, I thought that the first quoted statement came from the Heritage Foundation article and thus represented a clear intent to deceive. It did not. It was december’s conclusion based upon a source which practiced outrageously selective sampling. The statement is wrong, but I have no grounds for concluding that december knew it was wrong. I should not have called it a lie.
I’m sorry, december.
Note that the liberal Washington Post reached the same conclusion as the conservative Heritage Foundation. The Post has had three editorials blasting the Democrats for escalating the judicial nomination battle.
Lacking a time machine, there is no way to compare anything with the last two years of the Bush Administration. The first two years is all we have for the current Senate. That’s why the Heritage Foundation used this period.
Look, I agree that Republicans have unreasonably held up Democratic judicial nominees and vice versa. One could debate which party did more to advance this unfortunate practice. But, what cannot be denied is that the Estrada filibuster represents a major, new escalation, particularly because the grounds are so flimsy.
The only past filibuster that prevented a judge from being confirmed was when Abe Fortas was nominated for Chief Justice, a much higher level. I remember it well. There were real grounds. He was believed to have behaved unethically as Associate Justice. First of all, he continued as an advisor to LBJ while a member of the SC. Also, he had separate sources of income, in addition to his judicial salary. I never saw evidence that anti-semitism was a factor…
This is not my position. I certainly agree that the Republican Senate was holding up Clinton nominees, but I maintain that this Senate has escalated the war in a big way.
[quote]
Here are a few of those facts:
[list][li]The slowdown began in 1995 after Republicans took the majority in the Senate.[/li][/quote]
This is spin. The 1995 slowdown began in 1995. There were earlier slowdowns, where Democratic Senates held up Republican nominees.
The criticism wasn’t so unusual. Rehnquist had made the identical criticism against the Democratic-controlled Senate a few years earlier. PAW forgot to mention that.
Thank you. People for the American Way have produced total spin, but I have no grounds for calling you a liar.
However, I do seriously believe that the Heritage Foundation has a better reputation for accuracy than PAW.
“dramatic change in practice”
“escalating the judicial nominations battle”
How, exactly, do these represent teh same conclusion?
Lacking an ideological slant so powerful as to override reason, I have no cause to exclude the most recent past period of judicial nominations battles from my analysis of how judicial nominations battles have “dramatically changed”.
I prefer to substitute common sense for hypothetical time machines whenever possible.
Interesting. How strange that such thoughts were conspicuously absent from your posts decrying the obstructionism of current Democratic Senators. Now it appears that you, too, were engaging in a deliberate misrepresentation of recent political events in order to make an ideological rant more convincing.
As compared, for instance, to Jesse Helms and the 4[sup]th[/sup] circuit? I can deny that the filibuster represents a major new escalation, since it is simply another tactic in the same partisan gridlock which has plagued judicial nominations for most of the last decade. Indeed, as you yourself note later it is not even the first time a filibuster has been used to forestall a judicial nominee. Nothing revolutionary here, just more of the same absurd elevation of ideology and partisan animosity above legislative responsibility.
And you do see evidence that anti-hispanic bias is a factor now? Or was this simply a red herring?
Yet you chose to make your case not by comparing it to the obstructionist Republican behavior but rather by comparing it to a period before the latest wave of judicial gridlock.
Why?
I introduced the site with the acknowledgement that they, too, engage in selective sampling. But since you accept that the most recent slowdown began in 1995, you seem to not quibble with the factual nature of this statement, If you would like to introduce prior slowdowns in judicial appointments which you think are relevant to the current discussion then please do so.
Note, I did not pretend that the facts introduced by the Heritage foundation were inaccurate, merely selectively presented and designed to distort the political history of this legislative conflict.
If you think that some earlier slowdown provides a better insight to the current situation then by all menas make your case. Otherwise, your observation of past history is irrelevant. (I made mine by quoting Alberto Gonzalez. He, unlike the Heritage Foundation, possesses the intellectual integrity to acknowledge the relationship between the immediate past and the present.)
Please supply the cite.
Of course, Rehnquist also criticized the Democratic-controlled Senate for the same thing in 2001, and I did mention that.
You do not, particularly since I did not simply parrot the conclusions of the PAW article or present their data points as if they were objective analysis.
I am certain that some people reading this thread will be able to recognize that distinction.
Irrelevant on several levels, except as an explanation for why you would present such a biased “analysis” as if it were a demonstration of fact.
BTW it’s slightly off-topic, but I must share this nasty cartoon from the Los Angeles Times :eek: If a liberal paper like the LA Times is printing this smear, can you imagine what conservative media is saying?
Can the Democrats afford to put up with this sort of thing indefinitely? Just visualize the 2004 campaign in the Latino community if Estrada still isn’t confirmed. Republicans will turn the election into a referendum on whether a Hispanic judge should be promoted. 
Lord I hope they do. While the entire country is talking about the economy (and people are re-learning that wonderful phrase, ‘It’s the economy, stupid’, which seems even more fitting now) let the Republicans make this into a “referendum on whether a Hispanic judge should be promoted.”
Yes please. I’ll take some of that party self-destruction any day. 
You’re not familiar with Times cartoonist Michael Ramirez, december? I’m surprised, since – like yourself – he’s a staunch knee-jerk conservative whose idea of “insight” consists of parroting whatever the GOP party line is.
Go to http://www.politicalcartoons.com/ and dig through the archive of Ramirez cartoons; I’m sure you’ll find them enjoyable, in a “preaching to the choir” sort of way. But using a Ramirez cartoon to indicate “liberal” viewpoints makes as much sense as using Rush Limbaugh as an example of the “liberal” media. :rolleyes:
Why you would go to Orrin Hatch as a source for this, I have no idea, but even that unbiased party to Senatorial slowdowns doesn’t manage to find a quote that supports your assertion. Senator Hatch’s cite references a similar concern for judicial vacancies in 1993. It says squat all about “delays in the confirmation process”. Unfortunately, I cannot find a transcript of the year end reports from prior to 2000 on the SCOTUS website, so I have no way to judge the context of the 1993 remarks.
I think it is reasonable to surmise, though, that Senator Hatch selected the most damning paasage that he could find (since he was clearly trying to defend the actions of the Senate Judiciary Committee under his quidance.)
BTW, to refresh your memory, the statemenet you made was:
So, to sum up your cite:
[ul][li]It doesn’t contain any reference to slowdowns in the judicial confirmation process at the Senatorial level.[/li][li]If it did, then it would still not support the assertion quoted above, unless you think Bill Clinton was appointing Republican nominees in 1993.[/li][li]If it did, you would still have to support the idea that the slowdown in 1993 was directly relevant to the actions of today’s Senate.[/li][li]If you were able to do so, it would only weaken your thesis that the actions of today’s Senate represent a “dramatic shift” in the practice of confirming judicial appointments.[/ul][/li]:smack:
Can you imagine a world in which the entire content of a newspaper cannot be adequately summarized by a single political label?
I’d like to put a couple of names into the mix here:
[ul][li]Harlan Fiske Stone[/li][li]Frank Knox[/li][li]Henry M. Stinson[/ul][/li]
What these men, a Chief Justice and two Cabinet Secretaries, have in common is that they were Republicans of known probity and lack of ideological rigor nominated by the archbogey of all conservative Republicans, President Franklin Delano Roosevelt, to their respective offices in the shadow of World War II.
His point in doing this was to minimize partisanship and ideological disputation at a time when the country was faced with the looming spectre of a major international problem that it would be soon faced with dealing with, willy nilly.
Contrast this with the present nomination. We have a candidate whose substantive writings are blocked from examination by the Senate of the United States by the Solicitor General’s Office – whether for sound reasons or not is immaterial – who has steadfastly refused to speak on his personal political principles, whose testimony suggests that he would be a judge in the mold of Justices Kennedy and O’Connor but who claims not to have examined the most controversial case of the last third of a century with any degree of rigor (Hell, I’m not even a lawyer, and I can tell you what was right and what wrong with Roe v. Wade in constitutional law terms, ignoring the moral questions involved completely; I’d venture to guess that every law student who’s even remotely interested in constitutional law has done the same!) – and he’s being supported and opposed on purely ideological terms.
Is it impossible for George W. Bush to find candidates who have judicial experience, whose political stance is such as to not create end-of-the-political-spectrum allegations, whose jurisprudential philosophy is easily obtained, and if Mr. Bush so chooses, who are representative of minorities underrepresented on the Federal bench? What would be wrong with Mr. Gonzalez, December, in your opinion, as such a nominee? How about U.S. District Judge Charles W. Shaw, or Oklahoma County Judge Susan Bragg, both of whom are black? If you want Hispanic, how about Marguerita Esquiroz, Florida Circuit Judge for Dade County, or Carolina Colin-Antonini of Georgia, both of whom you will note are women, a second underrepresented group. How about Billy Michael Burrage, U.S. District Judge in Oklahoma, who is a Native American? I know little or nothing of their capacities, but that they are minority persons presently serving with distinction in judicial capacities. Among them, unless Mr. Bush is dead-set on an extreme conservative candidate, there should be one whose jurisprudence demonstrates him or her to be a candidate on which Americans of all ideological and political stripes can agree.
Mr. Bush received bipartisan support after 9/11, because loyal Democrats agreed that the crisis was a time when all Americans should come together. He can choose to squander that support by pushing a political-ideological agenda, and face the consequences – which could well mean a loss for him and for his party in 2004. But the choice is his.
Thanks for the description of Ramirez. Here are url=http://www.latimes.com/news/opinion/commentary/la-include-ramirez.ssipage]all of his cartoons back to January 21 Several of the cartoons are pro-war, anti-Saddam, anti-France, and anti-UN. There isn’t another anti-Democrat cartoon like the vicious one cited above. Do you think Ramirez might be particularly upset about Estrada, since his name indicates that he himself is Hispanic?
Polycarp, Bush tried to minimize partisanship. Early in his term, he appointed as judges two Democrats who had been nominated by Clinton, but not confirmed. The Democrat-controlled Senate responded to this olive branch by speedily approving these two nominees, then holding up most of Bush’s Republican nominees for appellate court.
leander. I was speculating that the Republicans could made the 2004 election a referendum on Espada in the Hispanic community. No voter really knows whether the Democrats would do better for the economy. It’s an intangible. But, getting someone from your ethic group an appointment that was unjustly held from him – an appointment that is an advance for the entire ethnic group-- that’s a tangible issue that every Latino voter can focus on. I can visualize the Republican cry now: “Send them a message!”
Spiritus Mundi, I think my cite was close enough to demonstrate my point.
Well, a lot of people would disagree. I have a sneaking suspicion that the Dems are going to draw loads of comparisons to Bush the elder and that evil ole Bill Clinton.
Why do think that the Dems didn’t focus on this in the last election with regards to Richard Paez? Should they have?
And clearly there are lots of conflicting opinions within the Hispanic community about Estrada. I imagine this will not be such a hot-button issue as you seem to think (and desire), as it is not so clear-cut, particularly amongst Hispanics.
december, I believe that you do, which is a sad commentary on my faith in human nature.
Your cite cannot possibly demonstrate the point of your assertion. If it were ignorance that led you to belive that it did, then I would feel compelled to fight it further. But your case seems to be willful blindness. You maintain that a second hand quote, sans context, regarding the judiciary during a Democratic Presidency is “close enough to demonstrate” your point about the previous Senates holding up Republican nominees . . . Well, that head’s buried a bit too far for reason to reach.
A fool and his money might soon be parted, but he shall carry his convictions to the grave.
My second hand quote was just as good as your second hand quote. My source was a key Estrada defender; yours was a key Estrada attacker.
The real question in this thread is whether or not the Democrats are providing honest and valid justifications for the Estrada filibuster. There’s no doubt that both parties held up some judicial nominations in the past. Nevertheless, “They did it too!” is not an appealing defense. One would hope that United States Senators could do better.
Spiritus Mundi, if you want to debate this point further, why not start a new thread asking which party deserves more of the blame for confirmation holdups? You could include other sorts of nominees as well as judges, if you like. Lord knows, neither party is blameless, so there is lots of basis to debate both sides of the question.
I qouted Justice Rehnquist in context and cited his remarks in full. You quoted Orrin Hatch excerpting Justice Rehnquist and provided no context for the remarks. That is the difference between a first hand and a second hand quotation. I also quoted a Bush administration official to represent the Bush administration’s perspective on the current situation. That was also a first hand quote.
Is this another area in which you willfully blind yourself to the obvious, or can you understand that distinction.
The real issue, of course, is that your second quote, even if carved in stone by God himself, is entirely irrelevant to the assertion you pretend that it supports. Unbelievably, it seems that I must remind you that Clinton was not a Republican President.
As it stands, it is also insufficient to address my contention that the Heritage Foundation engaged in an obviously deceitful selective data sample in order to misrepresent the political context of the current Senatorial roadblock. That might change if you could actually provide information about the behavior of the Senate during 1993 that could be viewed as significantly causal to the curent situation. To date, you have not even made an attempt to do so, preferring instead to consider your cite “good enough”.
That, I think, says quite enough about the manner in which you approach issues of politics.
As to starting another thtread, I could hardly care less about “who deserves the most blame”. There is quite enough childish petulance on both sides of this aisle.
I simply chose to address your presentation of a clearly deceptive “analysis” of the events preceding the current round of temper tantrums. The fact that simply acknowledging the poor quality of your chosen cite(s) exceeds your rhetorical repertoire is perhaps personally enlightening, but that’s simply a fringe benefit.