Supreme Court nominee a constitutional originalist; okay but this is not 1788…

February 1, 2017

Supporters of President Trump wanted him to fill the vacancy on the Supreme Court with a jurist who would strictly adhere to the Constitution and not read into it things that are not there, who would not engage in so-called judge-made law via court decisions, that’s what they would tell you. They want “strict interpretation”.

So with that in mind, I guess, our new president on Tuesday evening officially announced his choice for the replacement of the late conservative justice Antonin Scalia. He now goes before the Republican-dominated U.S. Senate for confirmation.

He is Judge Neil M. Gorsuch, a federal appeals court judge in Denver.

The following excerpt from a story in the New York Times might best describe the nominee’s legal philosophy:

“Ours is the job of interpreting the Constitution,” he wrote in a concurrence last year. “And that document isn’t some inkblot on which litigants may project their hopes and dreams.”

Now, on the one hand, I have to find it positive that a Supreme Court justice has respect for the Constitution, but who would say otherwise? But that document is not somehow self-interpreting. It takes legal scholars to explain much of it — things can be read in more than one way. Devoutly religious people don’t agree on what the Holy Bible says.

While we certainly would not want our justices to stray so far from the intent of our Founding Fathers that the framework they set forth was totally unrecognizable, things have changed since 1788, the date the Constitution was ratified by the then 13 states.

We don’t have slavery anymore. Women have the right to vote. Okay, those facts are the result of amendments to the original document. But it is no longer legal to make black people attend schools separate from white people. A historical high court ruling once held that it was completely permissible to force black people to use separate public facilities, the so-called “separate but equal” doctrine (Plessy v. Ferguson, 163 US 537 (1896 but then a half century later  came another court decision (Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) and it was held separate was not equal, therefore discrimination was held to be illegal. Of course not everyone agreed with that, particularly in the Jim Crow South, but overall public attitudes had changed (of course racism, like cockroaches, survives, and knows no geographical boundaries).

At one time it may have seemed perfectly right that women could not vote. It was a cultural thing. Heck, it has been written that the framers did not even envision common people who were not property owners voting. Attitudes on that changed.

It seems strange that a learned person would think that a constitution, which is a framework, not an actual statute or code section, would be interpreted 100 percent the same when society has moved from horse and buggy to space travel and from men in charge and women tied at home to the stove and babies to workers in the labor force and CEOs of corporations and leaders in governments of the world.

Yes, we still need to adhere to the basic principles of the Constitution and perhaps rely more on amendments than court decisions to enact changes, but in the end, as I stated before in this post, the Constitution is no more self-interpreting than the Holy Bible. And I realize that there are those who claim that the Bible is clear in everything it says and there can be no alternative interpretations. I can’t argue with anyone like that, except to say, no I’m right and you’re wrong, case closed.

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

May 31, 2009

(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.)


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.


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

Sotomayor could help change ivory tower of high court, but she has balance too…

May 27, 2009

I’ve been able to read a little more about U.S. Supreme Court nominee Sonia Sotomayor and I am kind of left feeling the same way as I did in my initial reaction, but maybe more positive.

I still think that she appears to be a good pick because she is a female – need more representation of what is for me the opposite sex on the high court – and she is Hispanic, so this would add some additional so-called minority representation as well.

In my initial reaction post I said that I was concerned about a ruling she voted in favor of that struck down the claim of reverse discrimination by several white (to include one Hispanic) firefighters in New Haven, Connecticut. They had taken a promotion exam, but since blacks did not score high enough, it was decided by a court that the test must have been discriminatory and on that grounds all applications for promotion were thrown out. Sotomayor, sitting as an appellate justice, sided with the ruling to uphold that decision. Some of her supporters argue that lest anyone have any problem with the reasoning there that all she really did was uphold the existing case law on discrimination as it now stands. That would give her the out that she might not necessarily agree that the whole thing was fair (although we don’t have any idea what she thinks on that). The Case in question, Ricci vs. DeStehano, as it happens, is now before the Supreme Court.

From reading some background on her various case decisions I see that she has made some decisions that would tend to please liberals and some that would tend to please conservatives or that she has decided both in favor of plaintiffs and in favor of defendants. She did work once as a prosecutor.

Already some conservative Republicans are jumping on a quote from her that the appellate courts are “where policy is made”. The idea here is that such shows her to be an activist who sees the proper role of the judiciary as making law, not just deciding law. But I read more about that quote and it said she was talking to college students and advising them that those who are interested in public policy often gravitate toward the appellate courts because, yes, that is where policy is made. She even added, somewhat jokingly, but not really, that she realized that she should not be saying that – but that is the way that it is.

While personally I feel that appellate court judges or all judges need to stick as close the written or decided law (and just how did it get decided?) as they can, I also know that they have to deal in interpretation of the law and that if there was no interpretation to be done there would be little need for judges in the first place. One can get carried away, though.

From reading and listening to the various reactions since the president announced his decision, I can see that there is likely to be strong opposition to Sotomayor. But with all of her experience – she has a lot – and the fact that she seems to have a fairly balanced record, even if she might be inclined to lean toward liberal decisions, and the fact that the Republicans need all the support that they can get and will once again be shooting themselves in the foot if they alienate females and Hispanics (and I acknowledge that not all in those two groups think alike), I think she has a more than excellent chance to win conformation. And, if nothing else, the Democrats may just have more votes.

Sotomayor is 54 and was born in New York. She currently sits on the U.S. Second District Court of Appeals. He parents were from Puerto Rico (which of course is part of the United States) and her father died when she was young. She lived in a housing project in the Bronx and was raised by a working mother. So, humble beginnings, some street smarts, and the fact that she has long years of experience that include a time as a prosecutor and long service as a justice, to me gives her a unique set of experiences that would be a valuable addition to the Supreme Court that can be somewhat of an ivory tower.

So, at this point, I see her nomination and likely confirmation a positive.


In my original post in reaction to the Sotomayor nomination I erroneously stated that minority firefighters in the Ricci vs. DeStephano case had been promoted over white firefighters when in fact no one was promoted. I corrected that in an updated post. But I like to make sure I clear things up.