High Court wrong on protecting Westboro’s vile actions…

While I would not want to see our free speech rights eroded and while I think that our First Amendment right to free speech is a cornerstone of our democracy I do not see why the U.S. Supreme Court felt it had to rule in favor of the infamous Westboro Baptist Church, whose members picket at or near military funerals with signs that proclaim such vile messages as “thank God for dead soldiers” and “God hates the USA”.

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An original story on the ruling:

http://news.yahoo.com/s/ap/20110302/ap_on_re_us/us_supreme_court_funeral_protests

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I’m not at all sure what they really believe in, but apparently part of their twisted view of life is that God is punishing the U.S. for tolerating or accepting homosexuality. And as I understand it, they don’t just picket funerals of gay soldiers, although if they did that would not make it any better.

It has long been held that even free speech is not unlimited. One is not protected by the First Amendment for yelling fire in a crowded theatre (and I am not sure whether it makes a difference whether there really is a fire or not — but that’s not the point here).

I have not yet read what the justices actually wrote in their opinion, but I would think that someone who disturbs family members and others paying their last respects to a fallen soldier would be in violation of disturbing the peace at a bare minimum, along with violating the family’s right to privacy, as well as being liable for torts such as creating emotional distress.

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ADD 1 (March 3, 2011): Okay I have now read, well at least scanned over, the court’s opinion and ruling. I have not changed my mind. I tend to agree with the lone dissenting justice, Samuel Alito, in this case (it was an 8-1 ruling). http://www.law.cornell.edu/supct/html/09-751.ZD.html

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And if the question is over the nation’s war policy (and I really don’t care what the Westboro Church thinks after their vile actions against dead soldiers and their families and friends), I don’t think anyone with any decency — no matter what their war views — would mock the dead or their families or root for the enemy.

Free speech rights present a tough issue for courts. You can’t just bar speech because you don’t agree with it or it makes you uncomfortable. But there is such a thing as human decency, and I think the Westboro Church has crossed the line and I think the high court was wrong on this one.

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ADD 2:

Here is a link to the majority opinion written by Chief Justice John Roberts: http://www.supremecourt.gov/opinions/10pdf/09-751.pdf

Hey congress, you were supposed to have already read the Constitution in eighth grade, now get to work!

So the Republicans are reading the Constitution in Congress. Nothing too wrong with that, I suppose.  And some Democrats are reading it as well, no doubt to jump on the bandwagon to appease the Tea Party and various elements of the far-right crowd.

While I don’t think there is anything wrong with reading the Constitution, it does seem like a waste of time when so much needs to be done to get the economy going and figure out a way to deal with the national debt and our extremely high unemployment rate. We are all supposed to be somewhat familiar with the Constitution already through our schooling through high school.

Earlier, I thought I read or heard that the Republicans were going to seek to halt any legislation they deemed to be unconstitutional. Well first, who would try to push through legislation that was thought to be unconstitutional? And second of all, it is not the job of the legislative branch to determine the constitutionality of a law. We were all supposed to have learned in eighth-grade civics, and then again in high school, and even then again in college (for those of us who did that) that the government is divided into three branches, a separation of powers — the legislative, executive, and judicial branches. It is up to the Supreme Court, with the help of the lower federal courts, to determine the constitutionality of laws. Although I have to admit that curiously folks way back when may have not completely thought that one out because it took the famous case (famous for lawyers and political science buffs) of Marbury v. Madison to determine that the high court had the power to determine constitutionality (but who else would?) or “judicial review” as it is called.

http://en.wikipedia.org/wiki/Marbury_v._Madison

And then there is “strict constructionism” or the idea that the Constitution just kind of says itself with no interpretation needed. Well I have seldom read anything that is not open to at least some interpretation – Slow Children. 

Arguing that the Constitution is literal with no need for anyone to interpret it or no room for differences of opinion on what it says is like arguing that the Holy Bible, everything in it, must be taken literally as the word of God (who interprets the word of God, you or me?). For the most part, the Bible is not written in straight-forward language (and what language did God speak?) and it has been translated into or from the Greek and Latin and from the original (help me here) Aramaic writings (I’m not a Bible scholar — maybe other languages too).

The Constitution is written in legalese and no doubt many of its provisions were intended to have differing interpretations due to the compromises necessary to get everyone to agree to all of its elements, not to mention (okay I mention it) that it was originally written in the 18th Century, before the industrial revolution even, and when customs and the whole world was far different than today.

And anyway, constitutions are not laws in and of themselves, they are frameworks for laws.

All that said, I tend to go along with the idea that lawmakers should hold fairly strict to the actual wording of the constitution. The document can be and has been amended, 27 times so far. It is often argued that if we were to follow the original intent, Blacks and Indians would only count as three fifths of a human being and that slavery would be legal. But the Constitution was amended to make that not so.

But views on what is constitutional and what is not do change over time. At one time the high court ruled that racial segregation was perfectly fine, but a half century later it reversed itself — so was it wrong to reverse itself? Or was it wrong the first time? Intelligent and not-so-intelligent people can disagree. Someone has to make the final decision. http://en.wikipedia.org/wiki/Plessy_v._Ferguson

Anyway, I guess it is okay for lawmakers to demonstrate they have read the Constitution. But now let’s get down to business!

P.s.

And here is kind of a strange twist, I think: While it is usually so-called “liberals” who are accused to bending the Constitution or stretching it to make it say what they want it to say, when it comes to the 14th Amendment, originally adopted as an outcome of freeing the slaves and making sure all citizens were protected under the law, the right wing, or at least the pro-business types, have stretched it (I think) to make it protect artificial citizens known as corporations and give corporations the same rights as actual individual people. So who was the strict constructionist here?

Political ad makes Supreme Court out as more of a second legislature than a court …

Maybe this isn’t a first, but it’s new to me and it’s disturbing to me if it is a new political trend. During the commercial break on the evening national news I saw a political ad for the nomination of Elena Kagan to the U.S. Supreme Court.

Well if high court hopefuls or their special interest supporters feel it is worth it and right to treat appointments to this ultimate arbiter of the law of the land as just another political contest, then it seems as if the Supreme Court must be a political and a quasi legislative body — you get enough of your guys and gals on there and they can make the law read the way you want it. While we know politics plays a role on the high court, what with the president nominating justices and a Senate confirmation necessary, the accepted position was that an ability to correctly analyze constitutional questions and questions of law with the rights of all parties involved taken into consideration with the ultimate goal of coming down with fair and just decisions was the goal of selecting a high court justice (with politics right in back of that, of course).

But the high court has become a second national legislature, a disturbing tend indeed.

　

P.s.

I already have no use for political ads. To me they are useless, or actually, more accurately, they are useless on me. In fact, If I was going to vote for a candidate, the typical political ad would more than likely make me question whether I wanted to vote for him (or her) or not. I would rather make my decision based on an objective look at the candidate’s record rather than one-sided propaganda, whether from the candidate’s side or the opposition. I might almost feel compelled to vote against my preferred candidate over the insult I feel when I hear one of those idiot one-sided and misleading ads.

Wondering whether Kagan is middle of the road or a cipher…

I confess, I have not been closely following the filling of the pending new Supreme Court vacancy story, so when I saw the news flash late Sunday night about Solicitor General Elena Kagan being President Obama’s pick, I had nothing to blog about.

And then after reading a quick synopsis on her on the New York Times website, I kind of came away with a good opinion of her because it seemed that she had taken some liberal and conservative stances, so I thought she was middle of the road.

So today I just read the David Brooks column on the Times website and wonder if I like her after all. If I got the correct message from his writing it was that she has been cleverly crafty in avoiding major ideological issues straight on. She has made a career in school and elsewhere of pleasing her superiors or seeing which way the wind blows and going with it. So, is she middle of the road or a cipher?

She has not been a justice, so you can’t read over a record of judicial opinions from the bench. That part does not necessarily bother me. It seems that in the past few decades we have not had non-judge Supreme Court picks, but there have been many in the past.

I would think knowledge of the law would be the main requirement, and I would think that having someone who has not been cloistered in the ivory tower justices seem to dwell in might help.

On the other hand, it bothers me that we might wind up with someone with no real opinion of her own.

While the Supreme Court is supposed to be all about the law and above politics, we all know that the choosing of Supreme Court justices, particularly in the past few decades,  has become something that is all about politics — just ask a guy named Bork. He even had a verb named after him, as in getting “Borked”.

And Sen. Sessions is so angry about not being confirmed himself all those years ago, he’s always ready with nit picky objections.

Some on the right would have you believe that we just need someone who follows the law, as if the law at the Supreme Court level is something static. If it were, we might not need a Supreme Court. The justices are called upon to interpret the law. And to do that, to some extent they look to the public mood of the times. Separate but equal in the mid 19^th century was seen by the high court as acceptable under the law. But by the 1950s the mood had changed.

I share with the conservatives the concern that the high court at times has seemed to go beyond interpretation and into legislation, which would seem to be a violation of the accepted principle of the separation of powers — Executive (President), Legislative (Congress), Judicial (Supreme Court and lower federal courts).

I’d have to look up the history of the Miranda case to be on safe ground, but off the top of my head, it seems to me requiring police to issue Miranda warnings is going beyond judicial power. Certainly the courts can decide someone’s constitutional rights were violated and come up with specific remedies on a case-by-case basis. But at the same time I would think it is up to individuals to know what their basic rights are. The Constitution is not secret. And even though none of us could or would read the text of every law that was ever passed, it is an accepted principle that ignorance of the law is no excuse. And what I mean here — and maybe not a good analogy — is that if you spill your guts to a policeman, that should be your problem.

The worst example of judge-made law at the Supreme Court level that comes to my mind was all that court-ordered school busing in the name of fighting racial segregation. It was an egregious waste of taxpayer money and I doubt very effective. It caused white flight to the suburbs (and now the suburbs all these years later we read are being filled by minorities and immigrants).

How it could be construed that a court would have the right to make public policy rather than to decide on the laws that guide policy is beyond me.

Of course the problem at the time was that schools were often de facto segregated because blacks tended to live in one neighborhood and whites in another. So even though the court could rule that forced segregation, as under the old Jim Crow laws, was illegal, it could do nothing about segregation that came about because of human behavior, so it took the extraordinary path of getting into policy making. What should the court have done? Nothing. You can’t or should not legislate morality or human behavior. Eventually politics and human events take over. We have a black president and I don’t think there is any evidence school busing had anything to do with it.

But back to Kagan. I need to read more about her. But it seems to me we need someone with his or her own opinion rather than someone just out to go along with the crowd, otherwise we would still be under separate but equal — back of the bus and so on.

P.s.

I’m relatively sure Kagan has her own ideas, though. And often a prospective justice’s real thinking does not become apparent until her or she is on the bench with that guaranteed lifetime job. This may well be the case here.

In regards to the Supreme Court corporation and politics ruling: the problem may really be in sorting out information vs. propaganda, but would we really want government to control political speech?

Tried to do some more research on that latest and most controversial U.S. Supreme Court ruling that overturns old law and gives corporations (and unions) nearly unlimited power to make big money donations to meddle in the political process. One problem in my research is a lack of time and a current bout of exhaustion. However, thanks to Wikipedia, I did get a chance to give the 5-4 Citizens United v Federal Election Commission decision a quick read.

I had mentioned in my earlier post that corporations (artificial people under the law) had already been given the rights of real people in previous legal rulings, using the 14th Amendment in part, an amendment most people would have thought was aimed at giving the same protection under the law to former slaves after the Civil War as other citizens enjoyed. In my ever-so-quick read of the opinion and even dissenting opinion I did not catch language about the 14th Amendment directly but they did mention that the courts have ruled that corporations have First Amendment free speech rights and other rights  just as real people do. There is reference to earlier court cases on point and I suppose some or all of them may address the 14th Amendment issue, and by the way, that issue is addressed by Wikipedia if you look up “corporations and the 14th Amendment”.

Even though most legal and political observers consider this a landmark decision, I blogged earlier that I did not think it really changed the playing field since big money always finds its way into campaigns and that you can’t separate money from politics. I still feel that way.

As I also alluded to in my earlier post, I think the problem is the intelligence and critical thinking power of the electorate. Presuming as an individual you have a mind of your own and are capable of keeping up on the issues separate from propaganda, you still have no control over the other guy who may be ignorant or lazy or both but who is still able to vote, and worse yet does.

And in my mind, here is the biggest problem of all:

It is becoming more difficult to sort out fact and opinion and commentary in the news, particularly on television (and the internet) where everything is mixed together. And it is even more difficult when you have a corporation that runs a far right-wing cheering section masquerading as a news network, such as FOX.

But FOX has been so financially successful that I think even CNN has caught the bug. Now I know that CNN tends to see the liberal side in a somewhat more favorable light than FOX, but the other morning the host was touting the far left line, quoting his own father as saying there are only two types of people in this world:  ”the rich and the rest of us”.  And I think he was referring to the afore mentioned court decision. His presentation was a mixture of news and commentary with no clear differentiation.

So, if this is how it is to be, it becomes difficult for anyone to make a critical analysis of the issues, if opinion, in which the deck is stacked on one side of an issue, is presented as a news report.

And if a whole news network can be hijacked by one part of the political spectrum, democracy, which depends upon the free flow of accurate information, is in danger.

Nonetheless we can hardly have government dictating the manner in which information is disseminated or presented.

And while this may or may not be the reasoning the conservative majority ruled the way they did, I find myself almost concurring with them.

The whole thing started when opponents of Hillary Clinton wanted to widely distribute an ugly hit piece, thinly disguised as a legitimate documentary, just before election time.

Opponents of corporate meddling in elections charge that the large corporations have the financial ability to unduly influence elections.

While I agree, I am not sure what can be done since big money will always find its way in. And there is merit to the argument of the majority that we don’t want the government to inhibit political speech.

The only weapon we have to combat the corruption of our politics is the free flow of unbiased information. If as consumers we responded better towards balanced reporting, the marketplace might well respond. But for some reason much of the public seems to respond better to what it wants to hear.

Many ordinary citizens probably don’t realize the value of good information.

But people who need good information to make business decisions or decisions in their professional lives/and or work do. That is why they tend to subscribe to or otherwise obtain quality publications where the aim is to impart valuable information, not just point of view.

P.s.

I’m still going to try to research this case further.

I can see through propaganda, but can the other voters? Supreme Court ruling on corporate political spending changes little, or you can’t take money out of politics…

A NEW LEAD:

Why should we fear corporations being able to purchase  unlimited amounts of political propaganda if we are smart and informed enough to see through it? Answer: we may be, but is that other voter?

I usually prefer to do some at least quick research before I blog, but yesterday when I heard about the latest Supreme Court ruling that gives corporations the right to do unlimited spending on the behalf of political candidates, saying a corporation has the same rights, most importantly free speech under the First Amendment, as a real person, I just felt like the good student who knows (or thinks he knows) the answer and wanted to raise my hand.

(I’m referring to Citizens United vs. Federal Elections Commission)

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ADD 1/Clarification:

I understand now the ruling does not address direct contributions to individual candidates, but in the broader context that may be a minor detail. And the court may have set the stage for a future ruling to that effect.

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Maybe later I will go into the details, but what I just wanted to get out of my system here is that it is a strange thing that that the 14th Amendmen (and some subsequent ones), enacted after the Civil War, to more clearly define or actually give black people, former slaves, the same rights as everyone else, has been used just as much or more over the years to help out big business. A corporation is an artificial entity that allows people to conduct business without being personally liable (and, yes, this is my own definition). In other words, you can reap the rewards, but if something goes wrong and someone wants to sue they can only go after the corporation, not your personal bank account.

When I took a required college course, Black Studies, the instructor, a black man from the African nation of Sierra Leone, noted, or maybe I should say claimed, that over the years, the 14th Amendment has been used more to protect corporations that actual people.

The fear among those who opposed the latest Supreme Court ruling is that corporations will be able to buy candidates and elections. While at first glance that might have been my concern too, at second glance I have to come to the conclusion that such is already the case and this really changes nothing. There have already been so many loopholes about funding that corporations — big money — pretty much runs the show, them and big labor (unions) anyway.

It is hard to impossible to take money out of politics. Money is how we narrow down the field and it is how we judge support. If anyone and everyone could run for office on an even playing field we would have so many candidates we would never be able  to sort things out.

So, where does the mythical ordinary citizen stand in all of this? Well, if he or she is all that interested, he or she can make a political contribution to a preferred candidate or to a preferred group that supports a candidate.

One reason citizens may feel left out in public policy is because they do not speak with one voice, so it is hard for politicians to gauge citizen opinion. A candidate also knows that if he or she is to stay in or win office it is necessary to obtain as much money as possible for campaigning. Those who give out the money implicitly expect something in return.

One problem for the everyday citizen is that for the most part in this country we have a weak party system. Political parties are supposed to be the forum in which various and divergent ideas coalesce into coherent policy. But members of the parties do not agree with each other and often strike out on their own. The people do not agree with each other and are liable to vote any which way. If individuals were willing to join groups and vote in blocks, especially blocks that could be identified by political candidates, they would have more power. I know that when I was a local newspaper reporter candidates for the county board supervisors (commissioners) bent over backwards to satisfy county workers because they tended to have the same interests, good salaries and benefits controlled by the supervisors, so they tended to vote in a block. On the other hand, individual taxpayers who paid for those salaries and benefits had little pull, unless maybe they belonged to the local taxpayer’s association.

But what I am really trying to say here is that this latest ruling does not  bother me terribly and, even though I do not agree that a corporation is a citizen just the same as a live human being, I cannot believe that our founding fathers and the enactors of the 14th Amendment meant a business entity to have all the same rights and privileges as a live human being. But that is all something for the lawyers to sort out.

Voters and citizens have power by keeping informed and voting accordingly and not depending upon paid political propaganda — from the right left or middle.

The only problem we the informed have is that the ignorant have just as much right to vote as we do. Fortunately although many of the ignorant make a lot of noise, most of them do not vote.

But then again, the problem is, many of them, too many, do.

I’d like to analyze this subject, especially that latest Supreme Court ruling, further, but personal time constraints prohibit that now.

P.s.

Just read that Air America, the liberal answer to Rush Limburger Cheese on radio, has shut down due to financial woes. Apparently the reactionary right wing can draw more money sponsors than the left. I don’t think listeners to right-wing talk radio or even TV necessarily represent the mood of the broader public — I hope not — but I suppose there is some connection here to money in politics generally.

Lindsey Graham: Judge Sotomayor when are you going to quit throwing fits???

Supreme Court justice nominee Sonia Sotomayor was the recipient of  loaded and unfair questioning of her personal temper. Kind of like asking the guy – so when are you going to stop beating your wife (didn’t know he did do that)?

(I didn’t use term “judicial temperament” because I could not find a satisfactory definition and because it seems to connote something different than simply temper.)

She was asked about anonymous charges that she throws a fit on the bench and unfairly goes after lawyers she does not agree with. South Carolina Republican Sen. Lindsey Graham brought up the charge seemingly to get at her, knowing, by his own admission earlier, that she will be confirmed, and that her past decisions, for the most part (Ricci excepted) don’t give her detractors enough ammunition to tar her as a activist liberal (as opposed to an activist conservative? Hey no matter what anyone says, they all make law on the bench by interpreting).

I used to like Graham, with that slightly squeaky or nasal twang of a voice. He’s usually quite congenial and I liked watching and listening to him on the talk shows, not because I usually agreed with his political positions necessarily but I guess I just liked to hear him talk, but no more.

It seemed like a cheap trick when he suddenly ambushed Sotomayor in a Senate confirmation hearing with the accusation that unnamed lawyers had accused her of being temperamental and flying off the handle on the bench.

Hate to use the “empathy” word since it’s now become a pejorative against her – Obama nominates her in part for her “empathy” and the far right says that does not have any place in law. But I empathized with her.

Before I go farther, I must say I don’t know whether I believe she is a good nominee or not – didn’t agree with her Ricci decision on the appeals court (it was overturned by the Supreme Court)– and for all I know she does have an anger management problem (have not and will not appear before her in court).

But that accusation was transparently a power trick. Because at that point in time, how so ever brief, he had some kind of power over her in that he might be able to sway votes or just because of the fact he was the questioner.

While uncontrolled and unnecessary anger is never a good thing, the unwritten law is that if you are in charge, you can be angry – maybe that is part of the reason you are in charge. You are a leader and you demand results and you get angry when you don’t see them.

But if you are not the leader and you get angry, you are a hot head and hard to work with.

I have a hard time believing he would have even resorted to that charge from anonymous accusers if she were not a woman. It’s often noted that when a man gets mad that shows toughness. When a woman gets mad, well she’s a B..ch.

And it’s always hard to defend yourself against such charges without becoming incensed and proving your accuser’s case (Sotomayor did not fall for that, but she seemed somewhat taken aback). I think Graham, who already said himself that she would confirmed barring a “meltdown”, accomplished what he wanted. He temporarily put her in her place. He even told her maybe she ought to do some “self reflection”. You make a condescending statement like that, after leveling unsubstantiated charges (anonymous charges) and you know the recipient is not likely to answer in defense, because again that would tend to prove the original charge true or a refusal to look inward.

Graham is a pipsqueak, but he took on what he perceives to be a great liberal enemy and made a show of it for the folks back home, his conservative buddies, and the TV audience.

Nice performance Lindsey, but I think Sonia has that lifetime appointment sewn up.

Supreme Court firefighter decision shows why we need judicial balance…

And now I know why we need balance between conservative and liberal justices on the Supreme Court.

I wholeheartedly agree with the high court’s announced decision today that white New Haven, Conn. firefighters were wrongly denied promotions when they passed a promotion test with high marks but the test was thrown out by the city because no blacks scored high enough.

And let me insert quickly here that I am relatively sure that such does not mean black firefighters in general are just not smart enough, it only means that those who took that test were either not quite up to it or did not study hard enough or did not use the correct study materials. Unfortunately in life we sometimes have to take exams to get ahead, and worse yet the way to pass the exams is often to study the exams themselves, that is to say, it’s more important to get the correct answers than to actually know the material (sounds contradictory, but that’s the way tests are sometimes), and the exams might not be the best measure of someone’s knowledge or leadership ability, except that one who does not realize the relevance of studying to the test may not have the reasoning and judgment to be a leader.

The court found no evidence that the exams were flawed or were not relevant to the job for which they were designed to test for or that they were worded in such a way as to be more favorable to white firefighters than minorities.

In a previous blog I suggested that perhaps the New Haven fire department might initiate a program to encourage and offer some assistance (I think that is what I wrote more or less) to black firefighters to help them study for promotion exams. I would add that any actual help would have to be offered to all.

The Supreme Court basically indicated that the city overreacted when it threw out the test on the grounds that since no blacks scored high enough (many did pass, they just did not get high enough scores) the city might be liable to a discrimination lawsuit. The court said there was no evidence that the test or procedures were flawed or discriminatory (I’m just going by my own interpretation of a news story here – this is of course not a scholarly legal analysis).

This whole problem is the end result of policies first codified in the Civil Rights Act of 1964 and furthered by various court decisions since then in the name of affirmative action.

While I don’t consider myself a conservative, I have always been opposed to affirmative action. I totally support equal rights and because so many people did too the Civil Rights Act was passed. I now recall doing some research for a college paper and reading the original bill’s intent and If I recall correctly it said there was no support of quotas only equal access (paraphrasing of course). But all that changed with various judge-made laws over the years that called for all kinds of schemes, from hiring quotas to busing school children all around town to get racial balance (how would that play today with the cost of fuel and our environmental consciousness?).

Quotas and I think busing have been done away with for the most part (not sure about that, though). But the notion of somehow stacking the deck to make sure that minorities get jobs or promotions still seems to exist.

The main problem in all of this is that in trying to do away with discrimination the courts implemented reverse discrimination.

I have two nephews who wanted to be firefighters for the state of California.They took classes at junior college. But they were discouraged from applying. One veteran firefighting official told one of my nephews point blank that if he was not an American Indian or black or Hispanic, he should not bother. They both moved on and got into other work.

It seems to me that affirmative action has worked against minorities. It has put the notion forward that they cannot qualify on their own and that they are just not smart enough to pass tests. Nonsense.

In my own life experiences I have not, in general, detected any outright difference in abilities among the races (yes I know white men can’t jump and blacks make good athletes, but you know what I mean), at least not in intelligence or leadership capabilities. I think it is more about the upbringing of individuals and the choices they make.

I fear that affirmative action has given some in the minority groups a sense of entitlement, the same sense that whites once had over minorities.

How much confidence can one have in one’s self when he or she has to depend upon affirmative action rules to get ahead? Not much.

If minority New Haven black firefighters want promotions I suggest that they do what their white counterparts did – study for the test.

And before I forget, as I said at the top of this blog, it is good that there are conservatives on the court. I guess it is too bad that justices seem to have to be labeled conservative or liberal and cannot just be expected to objectively interpret the law – but then again, interpretation implies some kind of ideological thinking takes place and it does. So to get a balance between conservatively rigid, unbending interpretation that would uphold outright and quite legal at the time discrimination of the past and rulings that go far beyond the letter of the law or constitution, which liberals are prone to make, we need that balance. The New Haven decision was 5-4, with the expected conservative/liberal split. The tricky thing is getting a justice on there who is middle of the road so decisions can go either way, a swing vote, as they call it. I think at this time Justice Anthony Kennedy is the closest to the middle ground, although primarily a conservative. And he did write the majority opinion in this one.

Interestingly, Supreme Court nominee Sonia Sotomayor sat on the appeals court panel that voted the other way in what was called a cursory opinion. In her defense, some observers say she was just following precedent. From what I have read about her, she tends to be liberal but is unpredictable. I kind of like that as long as she is following the law, as she interprets it, of course, and not making it up as she goes along. Maybe she could balance Kennedy and be a swing vote that is weighted to the left.

Rush and others have it wrong even if they have a point…

(WARNING: This is a long post. So if you don’t want to read it all I just want to say that while I think that Sonia Sotomayor would probably be a good Supreme Court justice I am concerned about a ruling she took part in that seems kind of like reverse discrimination (almost) and I also want to say that I know why the reactionary loudmouths are hollering “racist” and what they mean and why someone might buy it; it’s all about ratings, politics, and some legitimate white resentment. But if you have time, read on anyway so I will feel that I did something worthwhile.)

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While I don’t agree with the tone of folks such as Rush Limburger Cheese (not his real name) or Newt Gingrich in their shrill, especially in the case of Limburger, sounding accusations that Sonia Sotomayor is a “racist”, I understand where they are coming from. I don’t agree with their motives or possibly in this case even the accuracy of their charges.

What they are claiming is that because she is on record as asserting that as a Latina she has better judgment than a white man, she is a reverse racist, thereby no better than the more familiar conventional racist who just does not care for folks who are black or even brown or yellow, because he (or she) is white.

Sotomayor is Puerto Rican (Hispanic) by heritage. She has been nominated by President Barack Obama to replace the retiring Justice David Souter (she is considered liberal and thus would keep the court’s liberal contingent intact, but interestingly enough, Souter was considered conservative until after he took his place on the court and the decisions started coming down).

Limburger (not his real name) is an entertainer who uses politics as his shtick, although I must admit he seems to have become a primary de facto spokesman for the somewhat fractured or disorganized Republican party, which seems to be searching for a new identity. Power abhors a vacuum, so Rush rushed in. And I’m going off the subject here, but apparently the cable news, to include the left-of-center commentators, seem to love the fact that Rush is the spokesman – they run clips of his harangues every day.

Gingrich I suppose is looking for some kind of political comeback. So every time he makes a racist accusation he is appealing to his base for political (money) support.

But buried way down to right here in this blog is what I really wanted to say. Both Limburger (not his real name) and Gingrich and others of their ilk are playing on white resentment. And by that I mean resentment from white racists as well as just everyday white people who are not racist.

Let’s go back in time to the 1950s and the1960s.

As a kid, even as a little kid, I knew that there was such a thing as racial discrimination and as a white boy I did not have to suffer from it.

The little farming town where I lived in the middle of California’s Central Valley had one area designated “Colored Town” and one designated “Mexican Town”.

A de facto type segregation was noticeable in the public elementary schools, especially among the black children, because most of them lived in a certain section of town.

I was told by my parents and learned by watching the news on TV, and I guess from teachers at school too, that in the South there were actually laws that discriminated against black people. They could not go to the same schools, could not use public swimming pools, and had to use separate drinking fountains – and the list goes on, and let’s not forget, perhaps worst of all black people were kept from voting by various means.

I saw the news reports of a white sheriff (s) using dogs against black civil rights demonstrators. I saw the National Guard having to be sent in just to allow some black kids to go to a public high school, and federal marshal’s to get them into state universities, and, well you know the rest…

Later, as I got older, I also learned that there was often discrimination in employment – and this was not just in the South. And also, I learned that discrimination of all kinds was not just in the South. In fact it was just as bad everywhere.

I was taught not to be racist, and that is not to say that no one while he or she grows up is not exposed to or even indulges in some what may be thought of as a benign form of racism (racial jokes and such).

We had a neighbor lady from Texas. She saw nothing wrong with discrimination (and this was no joke). She said that “colored people” back where she came from were more polite. “If you are walking down the sidewalk they will step off the curb for you,” she said, just as matter of factly as you please. She was telling that to my mom and I think my mom almost fell out of her chair. I was listening. But I knew better. She was an otherwise nice lady, but in her Southern culture she had grown up with some assumptions about the place of race in society.

My upbringing, from an early time, pointed me toward support of civil rights and dismantling racial discrimination.

Things seem to turn when through a tragic event, the assassination of President John F. Kennedy, his vice president, from Texas, Lyndon Johnson, became president. Even though Johnson at one time had been a segregationist, he had turned to new deal-style Democratism and support of civil rights. Because Kennedy had unsuccessfully pushed for civil rights legislation, Johnson was able to use the sorrow of a nation to push it through, partly as tribute to Kennedy’s memory.

But of course passing laws alone does not necessarily change people.

However, at least the law was there. But as I became a teenager and throughout my teen years there were riots in the black ghettos all summer long every summer. There was a new militancy among black society. I never could understand what breaking a department store window and running out with a TV had to do with civil rights. None of us, no matter what our color or heritage, have a right to do that.

And then I was in the Army. And that is where I saw this strange dichotomy. Get this: I was assigned to my company. I was first greeted (if you want to call it that) by a stern and black First Sergeant. I was next introduced to a firm but somewhat less stern black platoon sergeant. I think the racial makeup of my company was about 50/50 black and white. It seemed that there were a tad more black NCOs among the career soldiers in my battalion. Among my peers I can tell you that there was no discrimination in promotions, at least from buck private to sergeant. I don’t recall seeing any black officers at that time where I was. But what I am trying to say is that there was certainly equal opportunity.

But among all of this we had a certain contingent of black soldiers who did not feel that they had to do what everyone else does or at least did not care to. To be fair, we also had white soldiers who felt this way. But the black soldiers had a ready advantage in this. If they did not want to do something, they hollered “discrimination”. Although this did not always work, especially in my company with so many black NCOs and a black First Sergeant, it did sometimes. The officer corps was particularly sensitive to discrimination charges because their higher ups were getting heat from their higher ups (it was all about the political pressure back home from those riots).

And caught in the middle of all of this are white folks who have never been overtly prejudice or practiced overt discrimination (or even acted in those ways in a suttle fashion) but who have watched some shirk their duties or try to take advantage using false charges of racism. And these white people are also told that if a person is a minority and robs a store we should consider the fact of his or her upbringing and the legacy of racial discrimination. There are white people who grow up poor (and yes, some of them rob stores), but they don’t, and shouldn’t, get that consideration.

We should all be judged “on the content of our character and not the color of our skin”, as the Rev. Martin Luther King Jr. once said. And under the law we should be treated equally, and that goes both ways. We should all have the same rights and the same obligations.

I think a lot of us thought that civil rights legislation would mean that folks would be treated fairly and that there would be neither discrimination against blacks (or other minorities), nor against the majority, because turning things around and just treating others wrong didn’t make sense. If white folks have been discriminating against black folks, you don’t solve the problem by turning around and letting them be discriminated against.

But in too many cases in interpreting civil rights legislation the federal courts have done just that. Although I think most of it has been abandoned now, in many instances court decisions led to racial quotas being mandated by court orders. We wound up with qualified non-minorities being refused jobs because a certain minority quota needed to be filled.

I once suggested to a racial quota-supporting professor at college that rather than quotas, a better solution might be a lottery. I proposed in a paper for her class that if you had virtually equally qualified candidates for a job you could put their names in a hat and whomever is chosen gets the job by luck of the draw. She thought that was a novel approach, but I could tell she was not buying it.

Enough of that – back to that court pick:

At this point I have neither read nor heard anything yet that makes me think that Sonia Sotomayor should not be appointed the U.S. Supreme Court, but I still have a nagging concern over her part in the New Haven, Conn. firefighters case.

And her comment from sometime back saying something to the effect that as a Latina she would hope she would have better judgment than a white man seems to me like just so many words and probably one needs to read or hear the whole context of that. And it probably proves nothing more than that if you ever think you might have a chance to sit on the high court you’re better off to say little to anyone (except I’m interested in that open position). Then maybe again, she may be benefitting because she is so outspoken and caught the ear of Obama. Remember Republicans (and conservatives), the other side won and gets to choose.

She’s authored enough opinions and took part in many more, so her record is clear to anyone who cares to study it. I’ve only read some summaries, but she seems fairly even handed, except I imagine on close inspection one would conclude that she as often as not leans to the left (whatever that means – to me it means she can give the benefit of the doubt to the side that might not get such treatment from those who think there is always a hard and fast answer to everything and it always means preserving the status quo).

The firefighters case, Ricci vs. DeStephano, has reached the Supreme Court and is awaiting a decision. From what I have read it is expected that the court will reverse the lowers courts’ decision, thus, interestingly enough, reversing Sotomayor’s ruling, sitting on the appellate court. I guess that is because there is still a conservative advantage on the Supreme Court (in this particular case I feel that is a good thing).

You can read the case or stories or summaries of it online at various sites, but in a nutshell 118 firefighters of the New Haven, Conn.  City Fire Department took a test for eight vacant lieutenant positions and seven captain positions. Trouble was, the only ones who scored high enough for promotion were white (and, or to include, two Hispanics). No blacks scored high enough. The city decided to scrap the test figuring it would be liable for discrimination. The case eventually wound up before an appellate panel, upon which Sotomayor sits, and with a summary opinion, not arguing the merits of the case, the appellate justices decided it was proper for the city to throw out the test. No one got promoted. Those who would have got promoted are suing.

While I have read that the test may have been flawed somewhat in that it has a question or questions irrelevant to these particular positions, and while I have read that the test was judged by some not to be the best way to determine qualities of leadership, I have not read anything that says the test by itself was in anyway discriminatory to minorities (just possibly the result).

From what I have read, at least one of the white men taking the test had a learning disability and had to go to some expense to buy study materials, but he was able to pass it through his own hard efforts and sacrifices.

And that’s kind of the way it is in life. Sometimes it’s all about taking the test. The smart people are the smart people often for no other reason than they study for the test. I am sure that every one of those applicants had the same opportunity to do what was necessary.

However, I do think that the city could decide that maybe that test was kind of useless and a new test and a new procedure could be found and a new recruitment effort could be made to encourage all to learn what it takes to pass it and get promoted.

But, you know, aside from race, there are other barriers we all face. Some of us take tests better than others. Some of us are smarter (or not) than others, and, I hate to say this folks, but we all do not possess leadership qualities. But I think leadership probably is something more to judge by actual job performance and interviews.

And, I’ll never get through with this blog, but the idea that simply because minority test takers do not score high enough does not mean they are being treated unfairly.

And is it not being forgotten that the bottom line, especially for emergency personnel, is are we promoting those with leadership and SKILL? Those two qualities have to trump concerns over racial discrimination every time.

P.s.

The Wall Street Journal has a good story on the New Haven case:

http://onlinewsj.com/article/SB124354041637563491.html

I want a justice who bases decisions on the law as long as they agree with my interpretations…

It always amazes me when someone claims that if he or she does not agree with some issue in public policy that the wrong they see is “unconstitutional”.

What do they mean? Are they referring to a specific provision in the constitution? Or are they just referring to what they feel is a general intent of the constitution and have they even ever read the constitution?

The constitution is a framework and a model of our government and law, but it is often short on specifics (not always).

For so long now, though, we have accepted that the nine justices of the Supreme Court have the job of deciding what indeed is constitutional and what is not, this even though the man on the street seems to automatically know what is constitutional and what is not (we of course are all entitled to our opinions).

But the fact that the justices can decide on the constitutionality of laws, thus overriding legislative decisions, and the fact that in so doing they can have such power over our lives (Roe vs. Wade and quite possibly a future decision on same sex marriage) makes appointments to the bench so extremely political. And at the same time people on either side of an issue often go to great lengths to disavow the notion that they would not support a justice over pure political reasons – it’s their ability to interpret the constitution, they will insist. But in interpreting, what would any human, justices included, have to work with? He or she has education certainly, but that cannot be separated from life experiences, personal feelings, individual opinions, all of these things that shape individual thought and opinion. And nominees for the high court are nominated by the president, and president is an elected official. He (or she one day) is a politician. So ipso facto it is at least partly (well all) about politics.

I think there is a conflict a president must face, or a divided set of reasons a president uses in choosing a nominee. We would hope that on one level the need for someone to have the ability to listen to both sides of an argument and then come up with a fair decision based on the law and not personal preference is one of the criteria the president uses. But the president is a politician and must consider the wants and needs of those who got him to where he is, along with all of the public. If the president is, say, a liberal, the president is obviously not likely to select a nominee who is seen to have a conservative record, and visa versa. If the president were middle of the road (and no president in my lifetime has been labeled as such that I can recall) the nominee might likely be middle of the road (but most people would probably see such a person as conservative, or worse yet, inconsistent).

So what I’m trying to say here – and for some reason having a hard time doing it – is that all this talk about having someone who can properly apply the law is almost (almost I say) disingenuous – sure we as good citizens have to want a justice who can do that, but what many of us want is someone who will properly apply the law the way we see it. It’s really pretty much political.

And Supreme Court picks are always a gamble. A president does not always get what is expected.

Conservatives have had worse luck in getting surprised than liberals, as I have read it. The first president Bush appointed Justice David Souter, thought to be a conservative. He turned out to be a more reliable vote for the liberal faction on the court (his retirement has opened the way for President Obama’s nomination of Sonia Sotomayor, whom liberals are hoping will be liberal enough and conservatives fear will be way too liberal). President Eisenhower thought he had appointed a conservative to be Chief Justice of the Supreme Court when he selected California Republican Governor Earl Warren. The Warren Court became the most liberal ever and anathema to conservatives. The Warren Court was seen by many as going far beyond the letter of the law and creating judge-made law in its decisions. Racial quotas in hiring, forced school busing, letting criminals go because they were not read their rights (so-called Miranda warnings), I think are part of the legacy of the Warren Court, along with the unconstitutionality in racial segregation of schools and other public services. So on the one hand, the Warren Court can be blamed for criminals being let off due to technicalities and on the other hand it can be credited with making it illegal to prevent someone from, say, attending a particular public school due to the color of one’s skin or from forcing a black person to sit at the back of a public bus.

I don’t find it too surprising that some still cling to the belief that justices should not be political and should stick to the exact letter of the law and not do anything to change the law, for it was not until the case of Marbury vs. Madison in 1803 that it was accepted that the high court could even decide the constitutionality of a law, based on the theory of judicial review. I guess before that people thought the high court was just the ultimate arbiter in cases and that the constitution was self-explanatory and never subject to change in its application.

Perhaps some still do.

P.s.

Personally I would like to see an open-minded justice who doesn’t think the law has to be stuck in some kind of time warp but who nonetheless will stick to the core principles of the constitution. An example, holding that separate but equal is unconstitutional, as in Brown vs. The Board of Education, is a good decision, for if blacks and whites have equal rights then there should be no purpose to separate them. But going a step further and ordering school busing to force desegregation of schools (as was done) goes way beyond the scope of the court and the constitution (my opinion, of course). Another example: holding that a test for firefighter promotion is discriminatory if it had questions on it that were not relevant to the position but seemed to be designed to eliminate people who did not have the same cultural background as the majority would seem correct, but simply holding that because no minority applicants passed the test, regardless of what the content of the test was, that the method of promotion is discriminatory seems to me to be wrong, illogical, and again way beyond the scope of the court (but of course the current state of federal law does not seem to agree with my assertions here).