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Thread: Sonia Sotomayor Tapped For Hight Court

  1. #81
    Mourning in America madanthonywayne's Avatar
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    Quote Originally Posted by Pandaemoni View Post
    The city itself determined that the test was biased. So they failed not "because of their race, bit because the test was biased against their race.
    The city made no such determination (AFAIK), they simply threw out the results because they didn't like the fact that minorities didn't do well on the test. Or was there some discovery of coaching of white candidates or evidence that whites (and that one Hispanic guy) were given copies of the test in advance? I'm sorry, but I don't accept the idea that the top scorers on a test must include representatives of every race or the test is biased. Show me how the test was rigged. Were there some secret codes on it only known by white people? Did the white guys make some kind of a mark on their papers which gave them bonus points? What exactly do you think happened?
    Quote Originally Posted by Pandaemoni View Post
    As I can see you do not follow statistical analysis, you would not care for that part, but it is a tool of logic that can be used as evidence to determine a race-neutral test from a racially biased one. Statistics would not by themselves, be dispositive, but they'd be evidence.)
    Please. I understand statistics. But, as you said, they don't constitute proof in and of themselves. All they do is suggest the likelyhood of a given outcome given certain assumptions. Statistics might tell you that the Milan Indians could not have possibly won the Indiana State Basketball championship in 1954. But they did. Should that result be thrown out as a statistical fluke? I'm asking for some actual proof of bias beyond statistics. Is there any at all? Otherwise, we're down to racial bean counting.
    Last edited by madanthonywayne; 06-02-09 at 01:29 AM.

  2. #82
    Valued Senior Member Pandaemoni's Avatar
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    Quote Originally Posted by madanthonywayne View Post
    The city made no such determination, they simply threw out the results because they didn't like the fact that minorities didn't do well on the test.
    That was the whole reason they threw it out. As the city counsel said, "The fact of the matter is it’s a flawed test." He even went on to say he has sympathy for the men who lost their priority in the ranking, but that does not render the test any more fair. The city did not throw it out because New Haven does not care about white people. Have you been to New Haven? It's pretty heavily caucasian.

    They do not need to prove that that it was unfair "beyond a reasonable doubt." (At least under the law as it currently exists, we'll see if the Supreme Court takes a dump on federalism to ensure a race discrimination result they like.)

    Quote Originally Posted by madanthonywayne View Post
    Or was there some discovery of coaching of white candidates or evidence that whites (and that one Hispanic guy) were given copies of the test in advance?
    The law does not require that anyone knowingly have "cheated" to invalidate the test.

    Quote Originally Posted by madanthonywayne View Post
    I'm sorry, but I don't accept the idea that the top scorers on a test must include representatives of every race or the test is biased.
    Statistics are kind os unarguable, so I am surprised that you do it. I mean, hypothetically, would you make the claim: "I do not think that the fact that only blacks were lynched in Georgia in 1897, proves that the lynchings there targeted blacks."? As a matter of statistics (and to simple logic) a disparate skew in the results of a thing often provide solid evidence of a bias in the way the thing occurred.

    Quote Originally Posted by madanthonywayne View Post
    Show me how the test was rigged.
    With respect, no one cares that you or I know the details of how the test was rigged. I once had a class where 80% of the students received a 100% score on a very difficult game theory test. No one knew how it could have happened, but the school decided to hold a second test. Most people did less well on the subsequent test. Did the fact that no one knew the mechanism by which the first test was biased, change that it was in fact biased? Would it have been fair to the bottom 20% to let the results stand? (With the curve, that would have meant that many of them failed the test.)

    As one of the bottom 20% (I had a 98% score on the test), I am glad they didn't twiddle their thumbs waiting to find a mechanism of bias to recognize that the results were obviously skewed. (The mechanism, by the way, was later revealed, but "later" would have interfered with my grade transcript and my grad school applications.)

    Quote Originally Posted by madanthonywayne View Post
    Please. I understand statistics. But, as you said, they don't constitute proof in and of themselves.
    Evidence, in a legal sense, is a fact that, if true, would tend to make a proposition to be proved more or less likely to be plausibly true than in the absence of that fact. In this case the disparate results are a provable true fact, and they are evidence of bias, since evidence of a biased result is evidence of bias. Of course statistics are not conclusive...they never are.

    Statistics is an entirely useless field of human knowledge if you only listen to them when the statistics are conclusive. It is possible that if I had a sack with 87 white marbles and 13 black marbles, that I could in 13 random draws blindly remove only the black marbles. If I actually managed to do it, you should suspect that I had some way of biasing the test.

    Quote Originally Posted by madanthonywayne View Post
    All they do is suggest the likelyhood of a given outcome given certain assumptions. Statistics might tell you that the Milan Indians could not have possibly won the Indiana State Basketball championship in 1954. But they did. Should that result be thrown out as a statistical fluke?
    No, but your argument requires a severe *misuse* of statistics in that case. Yes, you could prove that it was unlikely for them to win that year, but the odds of any one given team winning that year were all similarly small, and yet we know one team had to win.

    In that case, when you consider all the other possible outcomes you easily see that this stated outcome fits the general statistical pattern.

    I usually see this kind of argument in the ID community. It's a favorite one, where they calculate the odds of natural selection "randomly" assembling the DNA of a human, and conclude that the odds of it occurring are very much near zero. And they are correct, the odds that random amino acids combine randomly, even under selective pressure from nature selection, to produce a human is amazingly close to zero, even over billions of years. In one model that actually gave natural selection its due place as a "non-random" element in the building of a genome the estimate was still only 1 in 10^200+ in favor of humans.

    The reason that doesn't dis[prove evolution is that it discounts al the other things that natural selection might have led to. Viewed against other potential outcomes one on one you can see that the one that happened to occur is statistically just about as likely as they are.

    So, yes, false statistical arguments can be ignored. If I point out that every girl scout in America happens to be a girl, though, one can correctly conclude that the fix is in, even if one cannot identify why.

    Quote Originally Posted by madanthonywayne View Post
    I'm asking for some actual proof of bias beyond statistics.
    I assume you do not apply that rule in all fields. Many medicines, for example work without our understanding the physical mechanism by which they work. We do things like that a lot in statistics. We do not know, for example, why Advil has an anti-inflammatory effect. We know that, statistically speaking it does, but we can only guess as to why it does at this point. (See here "The exact mechanism of action of Ibuprofen is unknown.")

    Don't even read up on quantum mechanics, as you'll hate it if you want to know the "mechanism" by which a wavefunction collapses. All that exists there are the statistics and any talk of mechanism is usually tossed by the wayside as moot. Despite having no known provable "mechanism," transistors and microchips still work, and they can't be adequately understood without the mechanism-less quantum mechanics.

  3. #83
    troaty mouth best song ever pjdude1219's Avatar
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    Quote Originally Posted by superstring01 View Post
    Indeed. It's the Democrats who have a bit more of a sordid history of opposing Republican nominees. When the tables are turned, you hear a bunch of crybabies who gasp at the notion that their nominee should ever be held up in committee.

    ~String
    Well when they keep bringing up people like Bork(who voted for baby in the landmark case Rosemary vs. Baby) there might be a reason for that

  4. #84
    troaty mouth best song ever pjdude1219's Avatar
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    Quote Originally Posted by Acid Cowboy View Post
    SCOTUS decisions are supposed to be based on the intent of the Founding Fathers, not personal experience.
    the founding fathers would disagree with you on that

  5. #85
    Mourning in America madanthonywayne's Avatar
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    Quote Originally Posted by Pandaemoni View Post
    They do not need to prove that that it was unfair "beyond a reasonable doubt." (At least under the law as it currently exists, we'll see if the Supreme Court takes a dump on federalism to ensure a race discrimination result they like.)
    I do not like the implications of a statistical "proof" of discrimination. The result of such a policy is that the only way to be safe from running afoul of the law is quotas. Every metric used for hiring and promotion must, under such a regime, ensure that a given percentage of those who are hired/promoted are of each race. That practice is racist in and of itself. The position should go to the most qualified, not to the most qualified hispanic, or black, or asian, or white.
    The law does not require that anyone knowingly have "cheated" to invalidate the test.
    It should.
    Statistics is an entirely useless field of human knowledge if you only listen to them when the statistics are conclusive. It is possible that if I had a sack with 87 white marbles and 13 black marbles, that I could in 13 random draws blindly remove only the black marbles. If I actually managed to do it, you should suspect that I had some way of biasing the test.
    As would I. But when you accuse someone of a crime (discrimination), you ought to have better evidence than simply saying it's statistically unlikely that he didn't commit the crime.
    No, but your argument requires a severe *misuse* of statistics in that case. Yes, you could prove that it was unlikely for them to win that year, but the odds of any one given team winning that year were all similarly small, and yet we know one team had to win.

    In that case, when you consider all the other possible outcomes you easily see that this stated outcome fits the general statistical pattern.

    I usually see this kind of argument in the ID community. It's a favorite one, where they calculate the odds of natural selection "randomly" assembling the DNA of a human, and conclude that the odds of it occurring are very much near zero. And they are correct, the odds that random amino acids combine randomly, even under selective pressure from nature selection, to produce a human is amazingly close to zero, even over billions of years. In one model that actually gave natural selection its due place as a "non-random" element in the building of a genome the estimate was still only 1 in 10^200+ in favor of humans.

    The reason that doesn't dis[prove evolution is that it discounts al the other things that natural selection might have led to. Viewed against other potential outcomes one on one you can see that the one that happened to occur is statistically just about as likely as they are.
    Are you familiar with the movie, Hoosiers? It was based on the 1954 Indiana basketball championship. This was not just a case of one particular school winning (any of which might be regarded as having an equal chance) , but of a tiny school with a much smaller talent pool to draw upon beating all the bigger schools (a very unlikely event). Back then, Indiana didn't have a class system for basketball. So big schools and little schools all competed against each other. The year I mentioned was the only time a small school ever won the championship under that system. So it was akin to the drawing all black marbles example you cited.
    I assume you do not apply that rule in all fields. Many medicines, for example work without our understanding the physical mechanism by which they work. We do things like that a lot in statistics. We do not know, for example, why Advil has an anti-inflammatory effect. We know that, statistically speaking it does, but we can only guess as to why it does at this point. (See here "The exact mechanism of action of Ibuprofen is unknown.")
    Again, I don't like the implications of using that logic to prove crimes. It will undoubtedly result in quotas. Race should be ignored unless there is actual evidence of intentional discrimination. By the way, this opinion is not some self serving justification to discriminate. I am a member of a minority group (Hispanic). Hiring or grading tests based upon race is simply wrong, whether it helps me or hurts me.

  6. #86
    troaty mouth best song ever pjdude1219's Avatar
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    Quote Originally Posted by madanthonywayne View Post
    I do not like the implications of a statistical "proof" of discrimination. The result of such a policy is that the only way to be safe from running afoul of the law is quotas. Every metric used for hiring and promotion must, under such a regime, ensure that a given percentage of those who are hired/promoted are of each race. That practice is racist in and of itself. The position should go to the most qualified, not to the most qualified hispanic, or black, or asian, or white.
    If race is the only differing factor than guess what that is a sign the test has been designed to get different results according to race

  7. #87
    Mourning in America madanthonywayne's Avatar
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    Quote Originally Posted by pjdude1219 View Post
    If race is the only differing factor than guess what that is a sign the test has been designed to get different results according to race
    Consider this graph of average IQ:

    That is from wikipedia. Assuming it's accurate, does this graph constitute proof that IQ tests are biased? Is that all it takes? If the races don't all perform equally well, the test must be biased?

  8. #88
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    Quote Originally Posted by madanthonywayne View Post
    Assuming it's accurate, does this graph constitute proof that IQ tests are biased? Is that all it takes?
    The proof is obtained by fixing the obviously culturally biased parts of the IQ tests, and then observing that the measured differences between populations disappear. You can also observe historical test data and draw similar conclusions. It is completely uncontroversial amongst the psychology, education and policy communities that standard IQ tests show substantial cultural bias, and so laws exist in many states limiting their application to reflect this. If you want to know how they arrived at these conclusions, I suggest you consult the vast body of peer-reviewed science that's been published on the topic.

    Of course, this all points out that the very idea of measuring "intelligence" as a scalar value is itself poorly conceived, and so necessarily reflects cultural norms about the relative values of different capacities. The point of tests like IQ and SAT is to predict how well people will do in an American college, after all, which is a highly specific notion of "intelligence" or "aptitude."

  9. #89
    troaty mouth best song ever pjdude1219's Avatar
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    Quote Originally Posted by madanthonywayne View Post
    Consider this graph of average IQ:

    That is from wikipedia. Assuming it's accurate, does this graph constitute proof that IQ tests are biased? Is that all it takes? If the races don't all perform equally well, the test must be biased?
    You keep ignoring the all other things equal part of the equation. When your ready to debate honestly let me know.

  10. #90
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    Quote Originally Posted by madanth
    Is there any evidence that the test was rigged or that any of what you described as occuring in your home town occurred here?
    The racial disparities are dead ringers. Such disparities are what launched the inquiry, here. The situation we had is very, very common - it would be the default assumption, in most cases.

    You certainly can't be suggesting that people accept such odd test results without inquiry, and promote based on them, knowing what we all know about such situations in hundreds of other places, can you?

  11. #91
    Let us not launch the boat ... Tiassa's Avatar
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    Cool What's up letting Keith beat you to the punch?

    Quote Originally Posted by Madanthonywayne

    Doesn't La Raza translate as "The Race"? It's hard to imagine a magazine called "The Race" not being racist.
    Okay, this is just weird.

    Anyone who sits through an episode of Olbermann's Countdown on MSNBC is probably aware that he begins each show by asking, "Which of these stories will you be talking about tomorrow?"

    The answer, apparently, is, "Whichever one Republicans want us to talk about."

    No, seriously. I mean, sure, Olbermann's an entertainer, but he's also a step ahead of many Republicans. For instance, this was just about all of his show that I caught last night after the Mariners' game. I'm not sure if the coincidence is amusing or scary; this sort of thing has happened a couple other times over the last week or so, and I didn't make the point then for various reasons. Anyway:

    Last week, [Limbaugh] compared Judge Sotomayor to ex-clansman David Duke. He‘s now been paddled by David Duke. "Limbaugh," he writes, "a recent addict to illegal drugs, has no business making personal attacks against me for my past." Duke‘s website also says he criticized Judge Sotomayor as an activist in the primarily Mexican organization La Raza, which literally means the race.

    About that, it actually means race or family or branch of a family or clan or lineage or generation or quality of cloth or ray of light or a cleft in the foot of a horse ....


    (MSNBC)

    It's almost like Republicans are watching the show and, instead of repeating Olbermann, asking the same questions he's just addressed.

    Kinda creepy. Meanwhile, it's an interesting spectacle to see the right wing tearing at itself. When liberals fight among themselves, it's usually not like this.
    ____________________

    Notes:

    MSNBC. "Transcript: 'Countdown with Keith Olbermann' for Monday, June 1". June 2, 2009. MSNBC.com. Accessed June 2, 2009. http://www.msnbc.msn.com/id/31065420/

  12. #92
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    Quote Originally Posted by quadraphonics View Post
    The proof is obtained by fixing the obviously culturally biased parts of the IQ tests, and then observing that the measured differences between populations disappear. You can also observe historical test data and draw similar conclusions. It is completely uncontroversial amongst the psychology, education and policy communities that standard IQ tests show substantial cultural bias, and so laws exist in many states limiting their application to reflect this. If you want to know how they arrived at these conclusions, I suggest you consult the vast body of peer-reviewed science that's been published on the topic.

    Of course, this all points out that the very idea of measuring "intelligence" as a scalar value is itself poorly conceived, and so necessarily reflects cultural norms about the relative values of different capacities. The point of tests like IQ and SAT is to predict how well people will do in an American college, after all, which is a highly specific notion of "intelligence" or "aptitude."
    Explain to me how a test is "culturally biased"?

    Tests like SAT and GRE test mathematics, reading comprehension and vocabulary. I fail to see how these can be understood by one culture and not another (not to mention we are all part of the "American" culture) that generates these tests . . .

    Also, if these biased test parts are "fixed," are you arguing that suddenly racial trends would disappear from the results? Or that they would be only be differently ranked?

  13. #93
    Registered Senior Member Buffalo Roam's Avatar
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    I have found some interesting points on Sonia Sotomayor, that just may come back to bite the Liberals in the Ass.

    Seems that Sonia Sotomayor, being a Latinia just might be anti abortion.

    - Sonia Sotomayor upheld the Bush administration's “Mexico City Policy” which requires “foreign organizations receiving U.S. funds to neither perform nor actively promote abortion as a method of family planning in other nations." Does this ruling hint at a centrist view of abortion? Could Sonia Sotomayor be pro-life? It’s extremely unlikely that a Democratic Congress and President Obama would back an anti-abortion Supreme Court nominee.

    - Furthermore, Sonia Sotomayor has said that the government “is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."

  14. #94
    Mourning in America madanthonywayne's Avatar
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    Quote Originally Posted by countezero View Post
    Explain to me how a test is "culturally biased"?

    Tests like SAT and GRE test mathematics, reading comprehension and vocabulary. I fail to see how these can be understood by one culture and not another (not to mention we are all part of the "American" culture) that generates these tests . . .

    Also, if these biased test parts are "fixed," are you arguing that suddenly racial trends would disappear from the results? Or that they would be only be differently ranked?
    Exactly. This idea that any test in which all races do not perform equally well every time it is administered is ridiculous.

  15. #95
    Quote Originally Posted by quadraphonics View Post
    The proof is obtained by fixing the obviously culturally biased parts of the IQ tests, and then observing that the measured differences between populations disappear.
    What parts, pray tell, are culturally biased?

    Math? Reading? Vocabulary? Problem solving? Should we remove math because it, apparently, hurts latinos and blacks?

    ~String

  16. #96
    Let us not launch the boat ... Tiassa's Avatar
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    Cool Judicial activism

    Quote Originally Posted by Asguard

    what is it with the US and "judicial advocasy"?
    Do you mean "judicial activism"?

    On the one hand, it's a fairly simple concept. To the other, politics makes it seem complex.

    The working definition of judicial activism in the contemporary context is that a court might create a standing law by its ruling. There is a more classic definition, but in truth the old book that contains it went missing from my bookshelf a long time ago. At that time, I didn't understand the difference between what the author was discussing and what politicians meant. It was a bit confusing to try to reconcile the ideas in the essay with the politics of the moment.

    Consider the classic Santa Clara decision of 1886. This Supreme Court ruling is generally cited as the case that established "corporate personhood", the idea that a corporation has the same rights as an individual. All other questions aside, liberals of my strain tend to point out that the decision did not assign those corporations the same responsibilities as an individual. Advertising, for instance, is now regarded as an art form instead of an implied contract. Anyone is welcome to say that their product is the best, even if there is no basis for the claim. In short, corporations can lie in ways that people cannot, yet their expressions are still protected by the First Amendment. Caveat emptor, as the saying goes: "Let the buyer beware." It is bad for the economy if companies are obliged to be truthful.

    Ted Nace, in Gangs of America, notes of the decision in Santa Clara County v. Southern Pacific Railroad:

    If you go to a law library and read the Santa Clara decision in Supreme Court Reporter, Vol. 6 (1886), you will not find anything about corporate personhood. The decision, written by Justice Harlan and announced on May 10, 1886, includes a lengthy discussion of fences and mortgages, and a final conclusion that those techniical factors that fall in favor of the railroad. That's about it.

    So where does the idea come from that the [i]Santa Clara decision established corporate constitutional personhood? If you go back to the library and ask for a different compilation of Supreme Court decisions, United States Reports, Vol. 118, J. C. Bancroft Davis, Reporter (1886), you'll find n that version the following paragraph inserted in a section prefacing Justice Harlan's decision entitled "Statement of Facts":

    One of the points made and discussed at length in the brief of counsel for defendants in error was that "Corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States." Before argument, Mr. Chief Justice Waite said: The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.

    Another reference to personhood appears in the "Syllabus", or "Headnotes" to the case—that is, the annotations prepared by the court reporter to summarize the opinion. The first snetence fo these headnotes is as follows:

    The defendant Corporations are persons within the intent of the clause in section I of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.

    In other words, even though the written decision made no mention of the notion that corporations deserve Fourteenth Amendment equal protection rights, Chief Justice Morrison Waite made a comment from the bench that seemed to endorse the view that corporations are persons for the purposes of the amendment. The court reporter, J. C. Bancroft Davis, incorporated those verbal comments into the statement of facts. And in the syllabus (the court reporter's summary of the case), he highlighted Waite's verbal "personhood" comment as the main point of the case.

    The unusual way in which the verbal statement of Chief Justice Waite made it into the record and subsequently became the basis for an entirely new doctrine of corporate rights leads to a number of questions ....
    (102-103)

    In other words, the Supreme Court changed the way the government viewed corporations without an act of Congress or executive order. There was, generally speaking, no basis for this evolution of corporate status.

    While the Santa Clara case is unusual in its activist device, it has profound implications. And this is the sort of thing that you'll often hear conservatives complaining about when a decision does not go their way.

    Nace goes on to discuss just how the court reporter transformed a comment that was not intended as part of the decision into a new doctrine for American corporations. Indeed, at one point, Bancroft asked Waite for clarification on the comment, and the Chief Justice replied,

    I think your mem. in the California Railroad Tax cases expresses with sufficient accuracy what was said before the argument began. I leave it to you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the constitutional question in the decision.

    (104; boldface accent added)

    The Court specifically avoided the Constitutional question, and presumed a position for the sake of argument. The court reporter represented that avoidance differently, noting the underlying question and the presupposition as the central theme of the case. Hence a new doctrine was founded, and the relationship between law and corporation entirely redefined.

    But, as I noted, Santa Clara is an unusual example: judicial activism rarely, perhaps never since Santa Clara, depends on the doings of the court reporter. Nace further suggests,

    The reason Waite stopped oral argument on the issue of corporate personhood is probably because the Supreme Court had recently heard such arguments in the San Mateo case. Moreover, it is likely that Waite believed that the Santa Clara case could be decided on simpler, more technical grounds without resorting to a new interpretation of the Fourteenth Amendment. In general, the Supreme Court avoids breaking new constitutional ground when cases are not really ripe for it. There can be little doubt that a chief justice wishing to issue dictum would do so as a concurrence and would include a rationale.

    (105-106)

    The whole Santa Clara issue gets more and more complicated as one looks into it, including Justice Field scolding the court in yet another case involving SPRR, San Bernadino v. Southern Pacific Railroad:


    On the same day that the Court's opinion in the Santa Clara case was announced, the Court also announced its opinion in the case of County of San Bernadino v. Southern Pacific Railroad. In a concurrence to that opinion, Justice field—the leading advocate of corporate personhood on the Court, as we have already seen—expressed disappointment that with Santa Clara, complaining that the Court had not done

    its duty to decide the important constitutiona questions involved .... The question is of transcendent importance, and it will come here and continue to come until it is authoritatively decided in harmony with the great constitutional amendment which insures to every person, whatever his position or association, the equal protection of the laws, and that necessarily implies freedom from the imposition of unequal burdens under the same conditions .... Much as I regret that the question could not now be decided, I recognize fully the wisdom of the rule that the constitutionality of State legislation will not be considered by the court unless by the case presented its consideration is imperatively required.
    [/font]

    (106)

    Perhaps the most famous argument in the modern day about judicial activism is Roe v. Wade, in which the Court majority affirmed as a running theme through several provisions in the United States Constitution that a citizen's right to privacy does exist within certain bounds. Conservatives in the U.S. have railed against this notion for years, repeating as a mantra, "There is no explicit right to privacy in the Constitution". But in Roe, the Court identified several constitutional provisions that variously protected the petitioner, thus establishing her right to privacy by excluding the state's right to interfere. There is a discussion of privacy earlier in this thread, and I address the point in the context of Roe v. Wade, presenting the relevant portion of the Supreme Court's decision, in #35 above.

    Interestingly, our neighbor Mr. Roam asserts that the Ninth and Tenth Amendments establish the right to privacy, and one would think, reading those provisions, that the argument has prima facie merit. Were that the case, though, it would not have taken so painstaking a construction in Roe to make the point, and we would not have heard conservatives bemoaning the decision as activist over the last thirty-six years.

    More recently, conservatives denounced the 2005 Supreme Court decision in Roper v. Simmons as judicial activism. The Supreme of the United States Court affirmed the decision of the Missouri Supreme Court that juvenile offenders could not be executed for their crimes. Of course, they denounced the activism as liberal despite the fact that Missouri is generally a conservative state. Missouri was hit in 1983 and 1988 by federal courts rejecting abortion restrictions, for instance. In Roper, Justice Scalia wrote a stinging dissent essentially accusing the majority of writing law from the bench, but the majority cited changing trends in the national outlook and, more importantly, the context of new scientific knowledge about how the mind works. Juveniles do not make decisions according to the same brain processes as adults. The majority found that significant.

    It is entirely possible, in the Ricci case, that the Court might somehow simply instruct either the lower court or the NHCSB itself to simply ignore Title VII. Or it might decide their argument is not in good faith, and reject it that way. There are a few paths that the Court can follow that would lead to a reversal. But they all seem strange. To the other, though, the thought of striking 703(h) as unconstitutional could easily be construed as activist, especially insofar as the petitioners do not contest its constitutionality. Nobody is asking the question.

    The Roberts court, though, is unwieldy. It is hard to grasp its general outlook on the constitution. Perhaps after a few more sessions, the trends will emerge more vividly, but there are contrasting reports suggesting, on the one hand, that the tone of the oral arguments suggested the justices were more inclined toward overturning the decision. and, to the other, that everything about the factual record, save an obscure technical question of the nature of a particular meeting, suggests the NHCSB acted appropriately under the law. The case could well hinge on whether it was appropriate to transform a test certification hearing into a test validation hearing, but nothing in particular I've yet found suggests the Court is giving much attention to that aspect.

    I wonder, especially if the decision is to overturn or remand, who will write the opinion. The dissent I'll bet Stevens. Maybe ... maybe Ginsberg. Or maybe she would write a separate dissent. Breyer would be in with Stevens, but would that be it? Souter and Kennedy with the majority? Or which one in a 5-4 split? I guess that would depend on the direction the majority went with their rationale.

    I'll say Kennedy for a majority to uphold. In a concurrence. Why not?
    ____________________

    Notes:

    Nace, Ted. Gangs of America: The Rise of Corporate Power and the Disabling of Democracy. 2003. San Francisco: Barret-Koehler, 2005.

  17. #97
    My Aim Is True Cowboy's Avatar
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    Quote Originally Posted by madanthonywayne View Post
    Exactly. This idea that any test in which all races do not perform equally well every time it is administered is ridiculous.
    Or at the very least, if one group of people does worse than others, we should acknowledge that "cultural bias" may not be the cause. I recall reading that immigrants from Asia tend to outscore ALL Americans (on average) in many regards. If that's the case, why isn't cultural bias affecting newcomers to our country/culture more than people who were born and raised here?

  18. #98
    Mourning in America madanthonywayne's Avatar
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    Quote Originally Posted by Acid Cowboy View Post
    Or at the very least, if one group of people does worse than others, we should acknowledge that "cultural bias" may not be the cause. I recall reading that immigrants from Asia tend to outscore ALL Americans (on average) in many regards. If that's the case, why isn't cultural bias affecting newcomers to our country/culture more than people who were born and raised here?
    Good point. I never did buy that "cultural bias" line.

  19. #99
    Quote Originally Posted by Buffalo Roam View Post
    I have found some interesting points on Sonia Sotomayor, that just may come back to bite the Liberals in the Ass.

    Seems that Sonia Sotomayor, being a Latinia just might be anti abortion.

    - Sonia Sotomayor upheld the Bush administration's “Mexico City Policy” which requires “foreign organizations receiving U.S. funds to neither perform nor actively promote abortion as a method of family planning in other nations." Does this ruling hint at a centrist view of abortion? Could Sonia Sotomayor be pro-life? It’s extremely unlikely that a Democratic Congress and President Obama would back an anti-abortion Supreme Court nominee.

    - Furthermore, Sonia Sotomayor has said that the government “is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."
    That's called objective interpretation of the law.

  20. #100
    Valued Senior Member Pandaemoni's Avatar
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    Quote Originally Posted by Acid Cowboy View Post
    Or at the very least, if one group of people does worse than others, we should acknowledge that "cultural bias" may not be the cause. I recall reading that immigrants from Asia tend to outscore ALL Americans (on average) in many regards. If that's the case, why isn't cultural bias affecting newcomers to our country/culture more than people who were born and raised here?
    Here's the problem: OF COURSE if one group of people outscores another cultural bias may not be the problem. On the other hand, it may. The question the court faced in the CT case was not "Was there bias in the test?" but "Did the City have the right to invalidiate the test when the City is on record as believing the test was biased?"

    The City might be wrong to believe there was bias, but the City certainly has some right to determine if racial bias exists within its own government and procedures and to take efforts to address bias where they believe it exists (even if that belief could be, in theory, possibly wrong).

    Had the court ruled that the city had no right to set aside the test, it would be ruling that the City is not allowed, when the City has determined that racial bias exists, to correct the City's own racial biases.

    That is certainly "fair" to the cops who scored well on the test, but its patently unfair to the people who did not.

    The question on which I suspect madanthonywayne and I largely differ, I suspect, is that he does not really beleive that the City thinks the test is unfair. He likely believes that the City thinks the test WAR FAIR, but because the city wants more minority officers, is lying about their reasoning for setting aside the test in order to achieve a particular result (MAdanthonywayne can, of course, correct me if I amj incorrcet in my read of his suspicions).

    I, on the other hand, (a) think it is somewhat unseemly for a federal court to assume that a State-actor is lying, unless there is some solid reaon to believe they are lying, (b) am unsure why the largely white City of New Haven would be biased against whites and (c) think that if the City of New Haven were biased against whites, that the voters of New Haven would rise up and vote city officials out of office. If there were anti-whote bias then, I thinbk it would be corrected politically without a court imposed solution. That mitigates the problem of there being a systemic issue and makes me, in turn, more comfortable giving the City deference under clause (a) above.

    The same deference is applied in otehr discrimination cases as well, b the way. If an employer fires a female employee and states the reason as "poor performance," the courts presume the employer is telling the truth. It's up to the woman to rebut the presumption that that employer is truthful by a preponderence of the evidence. The City here is entitled to no less deference.

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