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May 27, 2009


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I'm still looking for the part where Alito makes a racist, sexist statement that being an Italian white man makes him a better judge that will make better decisions than someone of another race or sex, or that his "empathy" for persons who are discriminated against excludes the inferior white male. Or maybe he was saying that because of his experience, he believes that ALL racial/ethnic discrimination is wrong, not just that directed at minorities. Sotomayor obviously does not believe so because she is a bigot herself and wasn't even concerned enough about discrimination against the white guys to even render her own opinion in the Ricci case. Instead, she simply rubber stamped the discriminatory ruling of the lower court. A lot of "empathy" for victims of discrimination there.

I'm also recalling when Democrats filibustered Miguel Estrada solely because he WAS Hispanic and looking for the outrage at that travesty from the Left...

Bonus question: How many Democrats voted for Alito and all of his empathy?

Answer: It doesn't matter. Our team has the ball now, and the rules are different (Said while denying you even have a team).


"If we had a Supreme Court nominee who was ... a white male Republican, and he said something like that, my gosh, that would be the end of that nomination right there. ..."

-Orrin Hatch

Is anyone prepared to deny the truth of that statement? Is anyone prepared to deny that they would be on the front lines in mock outrage demanding the nomination be withdrawn? Is Ed prepared to deny that he would have the inflammatory statement featured prominently as a post if made by a white male Republican, complete with sarcastic commentary?

Didn't think so.

But it just doesn't matter. Our team has the ball, right?


I have no objections to her being on the court except that she is a wet-back (oh wait; she is Porta Rican) and a judge that will legislate(oh wait; she said set policy) form the bench. I hold her in high regard, but after all she is probably going through menopause, and will fly off the handle at any moment and she is definitely uglier than Ruth Ginsburg.


Sam, you missed the point, and what you wrote didn't make sense. A white-male Republican did say that, and he was confirmed, with Tim Johnson, Kent Conrad & Ben Nelson voting for, and 19 democrats voting for cloture (2 minutes @ senate.gov - difficult to gather facts). And Alito was clearly referring to anti-immigrant discrimination, and I doubt he would confuse a law preventing discrimination against immigrants as being anti-native born Americans.

It's stupid for Republicans to harp on the empathy card. They will vote against her because she is not conservative enough for them.

If you really want to control who gets appointed...win elections.


4tyber, don't forget the kinds of foods she likes. After all, her diet is a VERY important part of if she deserves to sit on the bench.


I'm not referring to the "empathy" card. I'm referring to the discrimination card.

I hope someone can answer my questions.

I agree that who wins gets to make the appointments. I'm glad that Democrats are finally coming around to this viewpoint. I suspect it will last until the next Republican president wins. Barack Obama does not agree with you or me by the way.

Fred Gregory


Perhaps that statement could be why Senator Obama voted against Alito and tried ( unsuccessfuly) to filibuster his nomination ?

Did Senator Obama or any Senator on the Judiciary Committee ask Alito about that statement ?

If so what was his answer ?


Didn't Alito go on to say that in spite of those "feelings", as a judge you still have to apply the law? This is no different than taking her comments at Dook about activist judges out of context. Didn't she go on to say that judges should not create policy from the bench?

Can we wait and see how the confirmation hearings turn out before the accusations start to fly?

Ed Cone

Kim, that's exactly the point of digging up the Alito quote -- that he said pretty much the same thing she did, but people are freaking out about her version.

Of course, people found other stuff to freak out about back then.

It's a tiresome game. Win elections, choose judges. That's how it's supposed to work.


That is what you call the spoils of victory. I think you said the same thing during the Bush years to the Dems. Stop complaining, and win some elections.


"Of course, people found other stuff to freak out about back then."


I'm still trying to find the quote where Alito said that "Appellate Courts are where policy is made" and that a white man will reach better decisions that a Latina female. You are kidding yourself if you think that Sotomayor's qualification after the "policy" remark absolves her. She clearly backtracked immediately when she realized it was being filmed and even says so in the quote "I know I shouldn't be saying this on tape" followed by a casual and nominal dismissal "because we don't make law". The only thing missing was a "yada, yada, yada, nudge, nudge, wink, wink, say no more, say no more".

Ed Cone

Sam, I quite clearly said the same thing during the Alito nomination. "The people who win the elections are supposed to fill those jobs."

And you know this, because we just had this conversation a couple of days ago.

I apologize for the fact that we pretty much agree on this topic.


For what it's worth, watching Chuck Todd this AM on Today show, played the Alito remaks above but cut it off when he says he still must follow the law.


It was interesting to hear John Cornyn on npr yesterday talk about the 'make policy' comment. It seemed that Sotomayor was just acknowledging that many tough interprative decisions get made in the appellate courts as opposed to the district courts . Cornyn's rebuttal was that appellate courts should only apply judgement previously given by the Supreme Court, effectively saying that it's OK for the Supreme Court to make policy, just not the appellate court. Orin Kerr "In the district court, she says, the goal is justice in the individual case. You need to think fast, and make a decision immediately. In contrast, at the court of appeals, the judges are usually — not always, but usually — worried about how the legal precedent will apply to the next case. So you need to be more contemplative at the circuit court level."

Fleshing out the other comment, "While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases."

Consider the move from Plessy to Brown. Only one judge dissented in Plessy - John Harlan. Would his experience as a Colonel in the Union army possibly have contributed to his dissent? The constitution did not change with respect to racial matters, but went from 7-1 upholding 'separate but equal' do 9-0 striking it down. Could it possibly be due to the fact the every justice in 1896 had lived in a time where slavery was legal, but by 1954 no judge had seen legal slavery? Sotomayor acknowledges the law is what it is, but also acknowledges that all of our decisions are impacted by our life experience.

Both quotes point me to the idea that Sotomayor acknowledges inconvenient truths and is not afraid to speak them.


"I clearly said the people who win the elections are supposed to fill those jobs."

Right. But what you did not do is challenge any of the criticism directed at Alito, nor feel compelled to address his opponents like you have done several times with regard to Sotomayor. Suddenly, you seem to have an interest in the integrity of attacks where before there was none.

Very typical passive-aggressive Ed Cone style of team sport play.

We do agree that she should be given a vote. We don't agree on the validity of her criticisms. You seem to care about them in her case, but not at all interested in them when directed at the conservative nominees who preceded her. I challenge you to deny that and explain if you aren't a team player, why she is drawing a different reaction from you than Bush's nominees.

All of this can easily be avoided if you would just come out and admit that you play team sports just as hard and as often as those you criticize.


"Both quotes point me to the idea that Sotomayor acknowledges inconvenient truths and is not afraid to speak them."

But those aren't supposed to be truths, rather an admission that some activist judges just can't help themselves.

Is it an inconvenient truth that a Latina woman is inherently going to make better decisions than a white male? You know damn well if a white man made that assertion in reverse, people on this blog and on television would be screaming, I mean like they have never screamed before. Mel Gibson and George Allen would look like Martin Luther King in comparison to the hysteria and venom. I just wish some of you had the honesty to admit it. But honesty doesn't matter in team sports. It's all about winning.


It really IS all about perspective which is why, in this "melting pot" of the US we need a Supreme Court that somewhat reflects the population.
For over 200 years white males have dominated the courts, the legislative and the executive branch of government. Diversity on the highest court was the main reason I voted for Obama and it is expected that the extreme right will scream bloody murder to keep the status quo because it has served them very well up until now.
White males don't have to assert outright that they would make better decisions. Discrimination over the ages made it unnecessary for them to assert anything, because they were chosen by peers who looked like them, raised their families in similar neighborhoods, and recreated with them. It is a joke to make this comparison.


Ishmael, your rationalization of the statements is a joke and in fact exhibits racism and bigotry itself.

Then you write "it is expected that the extreme right will scream bloody murder to keep the status quo because it has served them very well up until now."

My question is how do you expect the "Right" to react as opposed to the "extreme Right" and what would constitute "bloody murder"?


She did not say what you imagine she said. The truth is that our experiences are a lens through which we see the world. It is naive to believe that a Latina woman who graduated top of her class from Yale law school might view a gender discrimination case differently than a top-of-class male graduate of Yale Law. To claim "a Latina woman is inherently going to make better decisions than a white male?" is making stuff up.

Things like the incident Sotomayor experienced during an interview while at Yale Law still happen. People dismiss the achievements of women and minorities, claiming the only reason they were even admitted to law (or any other professional school) school was because of their gender or ethnicity. While those ideas display prejudice they also display stupidity because at the point of interviewing Sotomayor had already outstripped most of her peers, and those sentiments are most often directed at people who have already proven the insult to be false.

Sotomayor was differentiating between appellate and district courts, and Cornyn seemed OK with judicial activism as long as it was at the supreme court level.

Ed Cone


The essence of my latest column was not that people should not have strongly-held political views, or argue in favor of their views, or against other views.

It was simply that it's possible, and preferable, to hold strong views without demeaning and dehumanizing people who hold different views.

And, further, that by acknowledging that possibility, we might be able to make progress on issues, even in areas like abortion where fundamental differences seem unlikely to be resolved.

I can't really help you on the Alito thing. My comment says what it says. You need to parse it with your secret decoder ring and dog whistle? Okey dokey. Have a lovely weekend.


Sotomayor May be Wrong About Race, but She is No Racist: "Conservatives often rightly denounce overblown accusations of racism advanced by leftists. For that reason, among others, it is important that they avoid committing the same sin themselves."


How can anyone make progress on any issues with such blatant hypocrisy on display? You speak of "fundamental differences", yet fail to realize that it is impossible to determine a "fundamental difference" with such shifting values.

Making progress on an issue usually entails some form of agreement. For example, "we both agree that everyone should get an up or down vote". But when that isn't really the case because one of us didn't agree the last time and maybe won't the next time because the value that everyone should get an up or down vote changes depending on the ideology of the nominee, we will never reach an agreement.

Under such circumstances there will be no progress.

Or maybe you feel that politicians shouldn't be so nasty to nominees and feel compelled to castigate them for this- BUT that value is also shifting and you don't feel so compelled to castigate them when they attack conservatives. Under such circumstances, we will never be able to make progress in reaching an agreement as to how nominees should be treated.

Or maybe you are outraged at racist comments, but only when made by conservatives. Under such circumstances, we will never make progress towards reaching an agreement over what is appropriate or offensive because what you consider appropriate and offensive is relative to ideology, not to whether the comment is truly appropriate or offensive.

You see how it all ties together? You don't? I'm not surprised.... if you need a secret decoder ring to understand this, then you are the one with the problem. Insults are a poor substitute for argument, Ed, but I can see why you have to resort to them so often.

If you're going to play team sports, at least admit it. Otherwise, quit playing them or quit complaining about them.

You really are one of the most blatantly hypocritical people I have ever encountered, which wouldn't be so bad were it not for your constant denials that you are pushing an agenda or an ideological and often partisan point of view, and that "winning" political victories drives your arguments more than reason or consistency. You are more about "winning" for your side than anyone else in the local blogosphere (except maybe Ged), which is why your denials of team play just can't be taken seriously. You are the captain of your team, pal.

Ed Cone

Sam, we agree on something, and it drives you crazier than when we disagree.

And my column was not about what you think it was about. I regret that misunderstanding.


We do agree on one thing- if your current position can be trusted, which it can't. We disagree on many others- such as whether you defended Alito et al against charges the same way you are now aggressively defending Sotomayor. Or whether your previous attacks on conservatives that have made racial remarks are consistent with your treatment of Sotomayors racial remarks.

I regret that you lack the ability to see how what you wrote in your column relates to what you write on your blog. I realize some things have to be really dumbed down for absorption by some people out there, but I don't think it strains logic at all to say that one shouldn't write about the problems of taking sides and winning at all costs and how that prevents progress while one is actively and consistently engaged in taking sides winning at all costs to the point of applying blatant double standards.

Ed Cone

My column was not about the problems taking sides and winning at all costs.

I didn't claim to have "defended Alito et al against all charges."

I don't even know what your first sentence means, nor, I suspect, would many native English-speakers.

Relax, Sam. Enjoy your weekend.

Fec the Terrible

Why don't you two get a room?


My apologies. I seem to have made the mistake of believing that a Haverford graduate would understand that selective outrage/condemnation/defense is the purest form of the "team sport" mentality.

Steve Harrison

"Why don't you two get a room?"

Depending on which bed Ed chose, Sam would say:

"Ah. You want to be closer to the door so you can be the first to escape in case there's a fire."

"Ah. You want me closer to the door to give yourself more time in case a dangerous criminal breaks in here."


Fred Gregory

The Upcoming Love Fest , but What About When Democrats derailed a GOP Latino nominee

"It was precisely the fact that Estrada was Hispanic that made Democrats and their activist allies want to kill his nomination. They were determined to deny a Republican White House credit, political and otherwise, for putting a first-rate Hispanic nominee on the bench."


Actually Fred it was because he was not a judge and had no record, not because he was hispanic. He refused to answer questions, and since he had no record of legal judgements, the Dems refused to support him.

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