# Would it look or be good for Obama to withdraw Sotomayor's nomination? **URL:** \ **Category:** Great Debates\ **Created:** [May 28, 2009, 9:49am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913 "2009-05-28T09:49:06Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [May 31, 2009, 11:17pm UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/181 "2009-05-31T23:17:59Z")
> [@DSYoungEsq](#): > > No, you incorrectly cast the situation before the city. > > The City used a testing system to screen candidates for promotion. The results of that test, by the rules the federal government has promulgated, established that the test violated Title VII of the Civil Rights Act. Therefore, the City set aside the test, since it was inherently discriminatory, as shown by the disparate results. This is the basis of the law suit. Deciding something is inherently discriminatory based on the racially disparate **OUTCOME** of a test is blatant discrimination. It assumes that everybody is equally skilled going into the test. > [@DSYoungEsq](#): > > The applicants who scored highest were denied promotion because they did well on an illegal test. This is unfortunate, but it is not the result of reverse discrimination. that’s exactly what it is. > [@DSYoungEsq](#): > > Now I’m not saying that’s the only way to view the situation, but that is how the district court viewed it, and is why the district court, and the Circuit Court of Appeal rejected the lawsuit under Title VII by the firefighters. How the Supreme Court views the situation is yet to be seen. I understand that’s how the majority of the court saw it but the minority opinion was closer to the mark in that they didn’t address the issues of discrimination at all. Title VII is not an excuse to discriminate. ---
**Author:** ![haymarketmartyr](https://avatars.discourse-cdn.com/v4/letter/h/35a633/32.png) [@haymarketmartyr](https://boards.straightdope.com/u/haymarketmartyr)\ **Post date:** [May 31, 2009, 11:31pm UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/182 "2009-05-31T23:31:40Z")
In the second post of this thread Gyrate said this > [@](#): > > Furthermore, any reversal without substantive reason will look like weakness on the part of Obama, and will only encourage his opponents to throw up every possible obstruction and objection on every issue from now until the next election. I merely want to say “well said” and I agree 100%. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [May 31, 2009, 11:34pm UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/183 "2009-05-31T23:34:23Z")
> [@Magiver](#): > > I understand the point your making but the logic in the case is missing. The core of the case is discrimination. What you’re saying is that the court ruled the city was right to withdraw the promotions based on the idea they might be sued for discrimination. That logic left the train station when they got sued for discrimination. > > The case is simple. The city used a testing system to screen candidates for promotion. Everybody had an opportunity to prepare for the test in advance. The test was given and the results were set aside. The applicants who scored highest were denied promotion based on their race in a defacto quota system. Either the system was fair and open to normal job competition or it wasn’t. The case seems simple, but since it is going to SCOTUS it clearly isn’t so simple. Now, your argument here is what the plantiffs argued befor the \*original Federal District Ct Judge. \ ***He** heard all the evidence, and ruled against the plaintiffs. The plaintiffs then appealed, not based upon the facts, but based upon a point of law. Only the point of law was to be considered by the Appelate Ct, which ruled 3-0 in favor of the Defendant. Their ruling was completely correct as to that point of law. Then the Plaintiffs asked for a _en banc_ ruling, which was denied by a vote of 7-6. If your argument is that it is a clear cut case of discrimination, then your argument is with the original Federal District Ct judge, who is the only Judge to have ruled on whether or not it was discrimination, or as you say “the core of the case”. No other Court, including Sotomayors Appeals ct, \*could or did \*rule on the discrimination issue. Sotomayer’s ct was \*\*not \*\*empowered to hear or rule on the issue you bring up, what you call “the core of the case”. That’s not what an Appeals ct is for, in most cases. Sotomayer’s ct ruled upon one single issue of law, not the “core of the case”. You seem o think that Sotomayor ruled on the discrimination issue, where in fact she did not, nor should she of. And in any case, it wasn’t just Sotomayor, it was the entire 2nd Cir Ct. ---
**Author:** ![Biffy\_the\_Elephant\_Shrew](https://avatars.discourse-cdn.com/v4/letter/b/e47c2d/32.png) [@Biffy\_the\_Elephant\_Shrew](https://boards.straightdope.com/u/Biffy_the_Elephant_Shrew)\ **Post date:** [June 1, 2009, 12:42am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/184 "2009-06-01T00:42:23Z")
> [@Magiver](#): > > Deciding something is inherently discriminatory based on the racially disparate **OUTCOME** of a test is blatant discrimination. It assumes that everybody is equally skilled going into the test. We at the Ministry of Truth applaud Brother **Magiver** ’s finding that the assumption of equality is discrimination. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [June 1, 2009, 12:44am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/185 "2009-06-01T00:44:25Z")
> [@DrDeth](#): > > If your argument is that it is a clear cut case of discrimination, then your argument is with the original Federal District Ct judge, who is the only Judge to have ruled on whether or not it was discrimination, or as you say “the core of the case”. No other Court, including Sotomayors Appeals ct, \*could or did \*rule on the discrimination issue. Sotomayer’s ct was \*\*not \*\*empowered to hear or rule on the issue you bring up, what you call “the core of the case”. Just because Magiver favors an activist judiciary, that is no reason to throw the practices and rules of the U.S. court system in his face. ---
**Author:** ![MovieMogul](https://avatars.discourse-cdn.com/v4/letter/m/f08c70/32.png) [@MovieMogul](https://boards.straightdope.com/u/MovieMogul)\ **Post date:** [June 1, 2009, 12:59am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/186 "2009-06-01T00:59:54Z")
> [@tomndebb](#): > > Just because Magiver favors an activist judiciary, that is no reason to throw the practices and rules of the U.S. court system in his face. But he continues to refuse to admit that he favors an activist judiciary. He does, of course, based on his continuing advocacy of Ricci, but everyone knows Activist Judges are only the big bad liberals–how about we call these right-wing heroes Legal Transcenders of Truth! (just so long as you skip the fine print). ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 1, 2009, 1:06am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/187 "2009-06-01T01:06:11Z")
> [@ArchiveGuy](#): > > But he continues to refuse to admit that he favors an activist judiciary. He does, of course, based on his continuing advocacy of Ricci, but everyone knows Activist Judges are only the big bad liberals–how about we call these right-wing heroes Legal Transcenders of Truth! (just so long as you skip the fine print). And amusingly, the talking heads who accuse Sotomayor of considering irrelevant factors, and who attack this decision as allowing discrimination against whites, always seem to stress how hard Ricci studied, and how he was dyslexic. And how is that a relevant factor if the sole thing that should be considered is the exam results? It’s almost like they are suggesting that something other than the score on the test should be considered regarding the promotion decision… ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [June 1, 2009, 1:10am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/188 "2009-06-01T01:10:27Z")
> [@villa](#): > > And amusingly, the talking heads who accuse Sotomayor of considering irrelevant factors, and who attack this decision as allowing discrimination against whites, always seem to stress how hard Ricci studied, and how he was dyslexic. And how is that a relevant factor if the sole thing that should be considered is the exam results? It’s almost like they are suggesting that something other than the score on the test should be considered regarding the promotion decision… You mean, like, empathy? ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [June 1, 2009, 1:52am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/189 "2009-06-01T01:52:26Z")
> [@DrDeth](#): > > The case seems simple, but since it is going to SCOTUS it clearly isn’t so simple. Now, your argument here is what the plantiffs argued befor the \*original Federal District Ct Judge. \ ***He** heard all the evidence, and ruled against the plaintiffs. The plaintiffs then appealed, not based upon the facts, but based upon a point of law. Only the point of law was to be considered by the Appelate Ct, which ruled 3-0 in favor of the Defendant. Their ruling was completely correct as to that point of law. Then the Plaintiffs asked for a _en banc_ ruling, which was denied by a vote of 7-6. That’s not completely accurate. She was one of the 7 who voted down the en banc request, which goes back to the dissenting opinion I posted earlier. \*\*Cabranes noted that it was highly unusual for the panel to have issued a per curiam opinion, because the questions raised on appeal were “indisputably complex and far from well-settled.” He wrote, “The core issue presented by this case — the scope of a municipal employer’s authority to disregard examination results based solely on the race of the successful applicants — is not addressed by any precedent of the Supreme Court or our Circuit. … What is not arguable … is … that this Court has failed to grapple with the questions of exceptional importance raised in this appeal.” \*\* Judge Cabranes has expressed a view that the court could have, and should have addressed the core issue of discrimination. > [@DrDeth](#): > > If your argument is that it is a clear cut case of discrimination, then your argument is with the original Federal District Ct judge, who is the only Judge to have ruled on whether or not it was discrimination, or as you say “the core of the case”. No other Court, including Sotomayors Appeals ct, \*could or did \*rule on the discrimination issue. Sotomayer’s ct was \*\*not \*\*empowered to hear or rule on the issue you bring up, what you call “the core of the case”. That’s not what an Appeals ct is for, in most cases. Sotomayer’s ct ruled upon one single issue of law, not the “core of the case”. You seem o think that Sotomayor ruled on the discrimination issue, where in fact she did not, nor should she of. And in any case, it wasn’t just Sotomayor, it was the entire 2nd Cir Ct. I can only defer to one of Sotomayor’s peers and suggest that they could have accepted the case and ruled on the core elements of it. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 1, 2009, 1:56am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/190 "2009-06-01T01:56:21Z")
> [@Quartz](#): > > Contrariwise, could it not be seen as being strong and decisive? Suppose he were to keep her and further issues were to come out? Does he have an opportunity to dump her now and benefit from doing so? No, it would be seen as pandering, or as though he/his staff hadn’t done a very good job of vetting her. The administration doesn’t really need more of that sort of talk after the Geithner and Richardson fiascos. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [June 1, 2009, 2:19am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/191 "2009-06-01T02:19:14Z")
> [@Biffy\_the\_Elephant\_Shrew](#): > > We at the Ministry of Truth applaud Brother **Magiver** ’s finding that the assumption of equality is discrimination. Uh….. OK Brother Shrew. But what I said was assumption of equal skill. Skills are something that can be tested for such as the skill to read and understand what is written in a debate. Such a skill allows a reasoned and thoughtful response (you’ll know it when it happens). Promotion by way of testing allows an organization to advance employees based on their abilities. It reduces their ability to discriminate against people based on gender, age, race, religion, or an infinite number of biases. That is what the case we’re discussing is about. ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [June 1, 2009, 2:28am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/192 "2009-06-01T02:28:02Z")
> [@Magiver](#): > > Uh….. OK Brother Shrew. But what I said was assumption of equal skill. Skills are something that can be tested for such as the skill to read and understand what is written in a debate. Such a skill allows a reasoned and thoughtful response (you’ll know it when it happens). > > Promotion by way of testing allows an organization to advance employees based on their abilities. It reduces their ability to discriminate against people based on gender, age, race, religion, or an infinite number of biases. That is what the case we’re discussing is about. It’s not, however, the issue on which Sotomayor was ruling. The case came to her on a matter that’s sort of procedural: whether the locality in question was legally able to apply the rule that it did, and whether that application was reasonable. There was nothing about discrimination in there; it was a different principle entirely being discussed, ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [June 1, 2009, 2:30am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/193 "2009-06-01T02:30:14Z")
> [@Magiver](#): > > Judge Cabranes has expressed a view that the court could have, and should have addressed the core issue of discrimination. Which is the very definition of judicial activism. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [June 1, 2009, 3:24am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/194 "2009-06-01T03:24:14Z")
> [@Fear\_Itself](#): > > Which is the very definition of judicial activism. How so? ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [June 1, 2009, 3:27am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/195 "2009-06-01T03:27:00Z")
> [@Captain\_Carrot](#): > > It’s not, however, the issue on which Sotomayor was ruling. The case came to her on a matter that’s sort of procedural: whether the locality in question was legally able to apply the rule that it did, and whether that application was reasonable. There was nothing about discrimination in there; it was a different principle entirely being discussed, She made it procedural by voting against the en banc request. She denied the plaintiffs their day in court. In fact, you could say she was the deciding vote. ---
**Author:** ![EddyTeddyFreddy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eddyteddyfreddy/32/18796_2.png) [@EddyTeddyFreddy](https://boards.straightdope.com/u/EddyTeddyFreddy)\ **Post date:** [June 1, 2009, 4:09am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/196 "2009-06-01T04:09:25Z")
> [@Magiver](#): > > She made it procedural by voting against the en banc request. She denied the plaintiffs their day in court. In fact, you could say she was the deciding vote. She was one of three who decided. If this was such a shocking miscarriage of justice as you seem to believe it was, then the two other justices (both Republicans, if I recall correctly) could have cast their votes the other way. The plaintiffs had already had their day in court – the lower court, where matters of fact are tried within the confines of applicable law. Cases are refused appellate review based solely on procedural grounds all the time, EVERY FRAKKIN DAY, in EVERY FRAKKIN APPELLATE COURT IN THE FRAKKIN COUNTRY. You are flat-out wrong in this matter on appellate procedure, grounds for appeal, and application of precedent to cases under appeal. **The underlying facts of this case are IRRELEVANT to the issues on which the appeal relied.** It would be judicial activism of precisely the overreaching kind which conservatives bleat so fervently about; it would be legislating from the bench to have said in effect, “Oh, that poor hard-working fire fighter! I’m going to ignore all the silly little laws that stand in the way and give him what he ought to get, no matter whether he’s legally entitled to it or not!” ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [June 1, 2009, 4:15am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/197 "2009-06-01T04:15:15Z")
> [@EddyTeddyFreddy](#): > > She was one of three who decided. If this was such a shocking miscarriage of justice as you seem to believe it was, then the two other justices (both Republicans, if I recall correctly) could have cast their votes the other way. She is the one being considered for SC justice. > [@EddyTeddyFreddy](#): > > You are flat-out wrong in this matter on appellate procedure, grounds for appeal, and application of precedent to cases under appeal. Take it up with the dissenting Judge who said they should have pursued it. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [June 1, 2009, 4:31am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/198 "2009-06-01T04:31:35Z")
> [@Magiver](#): > > That’s not completely accurate. She was one of the 7 who voted down the en banc request, which goes back to the dissenting opinion I posted earlier. > Judge Cabranes has expressed a view that the court could have, and should have addressed the core issue of discrimination. > > I can only defer to one of Sotomayor’s peers and suggest that they could have accepted the case and ruled on the core elements of it. That _was_ “completely correct” as I mentioned that. Sotomayer was \*part of \*the 3-0 original appelate dec and _part of_ the 7-6 vote to not hear the case en banc. It’s true there was a minority opinion of the Court that suggested a possible “activist” ruling. But note it was and remains a minority position, and activist rulings by the Circuit ct are not often greeting with cries of joy and happiness by the right wing, as has been pointed out many many times in this thread. In other words, the right wind is blaming Sotomayer for NOT supporting an activist position, but they condemn Judges who are judicial activits. So it’s damned if you do and damned if you don’t. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [June 1, 2009, 5:02am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/199 "2009-06-01T05:02:37Z")
> [@DrDeth](#): > > That _was_ “completely correct” as I mentioned that. Sotomayer was \*part of \*the 3-0 original appelate dec and _part of_ the 7-6 vote to not hear the case en banc. > > It’s true there was a minority opinion of the Court that suggested a possible “activist” ruling. But note it was and remains a minority position, and activist rulings by the Circuit ct are not often greeting with cries of joy and happiness by the right wing, as has been pointed out many many times in this thread. In other words, the right wind is blaming Sotomayer for NOT supporting an activist position, but they condemn Judges who are judicial activits. So it’s damned if you do and damned if you don’t. Title VII is not the bible of every law with the word discrimination in it. The core of the argument is very basic and if it conflicts with other laws then that is the point of having upper level courts. One law used to fight discrimination does not cancel out all other laws. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 1, 2009, 5:16am UTC](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913/200 "2009-06-01T05:16:44Z")
> [@Magiver](#): > > Take it up with the dissenting Judge who said they should have pursued it. :rolleyes: -“I’m not the only one who sees it this way! Authority X agrees with me!” -“But your position is factually wrong.” -“Take it up with Authority X, man.” [Previous page](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913.md?page=9) [Next page](https://boards.straightdope.com/t/would-it-look-or-be-good-for-obama-to-withdraw-sotomayors-nomination/497913.md?page=11)