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Old May 26, 2009, 01:28 PM   #26
Csspecs
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Correct me if I'm wrong, but was the person that she is replacing an anti anyway? If so it would seem that nothing has been made worse its just about the same.

No one here honestly expected him to pick someone for the NRA A list. Right?
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Old May 26, 2009, 02:00 PM   #27
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True I am tired about race and such playing into qualifications. Why cant we just have no picture of this person. Just there history and record.

Being the first in something does not make one highly qualified......
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Old May 26, 2009, 02:02 PM   #28
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No one here honestly expected him to pick someone for the NRA A list. Right?
Knowing that he would pick a liberal justice, I was hoping he would happen to pick a liberal that was conservative on at least a few issues (pro gun rights, pro-life, pro capital punishment, and pro homeschooling, etc...)
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Old May 26, 2009, 02:06 PM   #29
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No help for ye' ol' hogdogs? Curious about the other possible choices and who would have been best for us. Lord knows the dems don't like the conservative choices and the conservatives despise the liberal president's choices... so of those suspected to be on the list of possibilities... Who is best for us all in this case?
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Old May 26, 2009, 03:09 PM   #30
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I just pray that no conservative judges retire before we get another republican president .with this pick no wonder people are buying guns and ammo like crazy!I was starting to slowdown on gun and ammo purchases but now I'm going to keep on buying.If obama gets re-elected we are so screwed,cause thats when his real left wing agenda will come out!
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Old May 26, 2009, 03:45 PM   #31
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Curious about the other possible choices and who would have been best for us. Lord knows the dems don't like the conservative choices and the conservatives despise the liberal president's choices... so of those suspected to be on the list of possibilities... Who is best for us all in this case?
hogdogs, the short list was: Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood. California Supreme Court Justice Carlos Moreno was also mentioned. Much like the President's other appointments, not any friendly faces for gun owners and a lot of openly hostile ones.

Of those, only Elena Kagan (former dead of Harvard Law) has no past anti-gun record or ruling and what testimony she has given before Congress was somewhat supportive of Heller and stare decisis. She was also quizzed on the issue of using foreign law (with gun control specifically mentioned) in arguments before the Supreme Court. She stated she saw no support for the use of foreign law in the Heller decision; but as Advocate for the government, she would use such an argument if it appeared it might sway the Justices over to the government's argument.

I doubt she would win any awards from the NRA; but she looks good next to this bunch of nominees, plus as someone who just went through the Senate confirmation process, she would be a safe bet for the Obama Administration. Of course, her Second Amendment views might be much worse than any of these and she was simply smart enough to keep them to herself.
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Old May 26, 2009, 04:47 PM   #32
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I don't view the decision in Maloney quite so negatively.

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yet in the Maloney v. Cuomo decision, she doesn't even discuss the fact that Presser predated the doctrine of selective incorporation via due process or discuss how that might affect the Plaintiff's case.
Maloney only argued that Presser and Bach should be reviewed in light of the DC. Circuit decision in Parker. In a post-Heller letter, he acknowledged that "Heller is not directly applicable as against state restrictions on the possession of arms in the home" (Presser) but stated "that the Court will soon hold that the Second Amendment is among those Bill of Rights provisions that have been “incorporated” against the states." It was not much of an argument for the court to work with - certainly not the carefully crafted type of Due Process approach that was persuasive in Nordyke.

Quote:
Relying on the Supreme Court’s 1886 decision in Presser v. Illinois, it explained that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms. The Supreme Court’s recent decision in District of Columbia v. Heller, the court continued, “does not invalidate this longstanding principle.” And while acknowledging the possibility that “Heller might be read to question the continuing validity of this principle,” the panel deemed itself bound to follow Presser because it “directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.”
The Nordyke court reached the same conclusion:

Quote:
There are three doctrinal ways the Second Amendment might apply to the states: (1) direct application, (2) incorporation by the Privileges or Immunities Clause of the Fourteenth Amendment, or (3) incorporation by the Due Process Clause of the same Amendment.

Supreme Court precedent forecloses the first option. The Bill of Rights directly applies only to the federal government. (pages 9-10 citing Barron, Cruikshank, and Presser)
I believe that circuit courts should not wander off on their own to reconsider Supreme Court decisions. Presser (as objectionable as it may be) is still "settled law" until the Supreme Court says otherwise. Maloney ran face first into Presser while Nordyke found a way around it.
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Old May 26, 2009, 04:52 PM   #33
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sorry if I am underwhelmed:

http://books.google.com/books?id=qVi...k2T9akS8&hl=en

Seems we have a lot to learn in international treaties on how we "interpret" the constitution.:barf:

With a new Civillian /small Arms treaty under the microscope, it does not look good.
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Old May 26, 2009, 10:09 PM   #34
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Her record of case reviewed by the SCOTUS

Looks like she's qualified to me.
She's had 10 reversals out of 14 of her cases that went before the Supreme Court.
Two cases upheld, but her reasoning was cited unanimously as faulty.
One case pending.
And one case that was actually upheld clean.
Yep, sounds like she's qualified to me.

http://www.cnn.com/2009/POLITICS/05/...html#cnnSTCTex


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Cases Reviewed by the Supreme Court
• Ricci v. DeStefano 530 F.3d 87 (2008) -- decision pending as of 5/26/2009
• Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007) -- reversed 6-3 (Dissenting: Stevens, Souter, Ginsburg)
• Knight vs. Commissioner, 467 F.3d 149 (2006) -- upheld, but reasoning was unanimously faulted
• Dabit vs. Merrill Lynch, 395 F.3d 25 (2005) -- reversed 8-0
• Empire Healthchoice Assurance, Inc. vs. McVeigh, 396 F.3d 136 (2005) -- reversed 5-4 (Dissenting: Breyer, Kennedy, Souter, Alito)
• Malesko v. Correctional Services Corp., 299 F.3d 374 (2000) -- reversed 5-4 (Dissenting: Stevens, Souter, Ginsburg, Breyer)
• Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997) -- reversed 7-2 (Dissenting: Stevens, Breyer)
• Affirmative Action (New Haven firefighter case): Sotomayor was part of a three-judge panel that ruled in February 2008 to uphold a lower court decision supporting the City of New Haven's decision to throw out the results of an exam to determine promotions within the city's fire department. Only one Hispanic and no African-American firefighters qualified for promotion based on the exam; the City subsequently decided not to certify the results and issued no promotions. In June 2008, Sotomayor was part of a 7-6 majority to deny a rehearing of the case by the full court. The Supreme Court agreed to review the case and heard oral arguments in April 2009. Ricci v. DeStefano 530 F.3d 87 (2008)
• Environment (Protection of fish at power plants): Sotomayor, writing for a three-judge panel, ruled that the Environmental Protection Agency may not engage in a cost-benefit analysis in implementing a rule that the "best technology available" must be used to limit the environmental impact of power plants on nearby aquatic life. The case involved power plants that draw water from lakes and rivers for cooling purposes, killing various fish and aquatic organisms in the process. Sotomayor ruled that the "best technology" regulation did not allow the EPA to weigh the cost of implementing the technology against the overall environmental benefit when issuing its rules. The Supreme Court reversed Sotomayor's ruling in a 6-3 decision, saying that Sotomayor's interpretation of the "best technology" rule was too narrow. Justices Stevens, Souter, and Ginsburg dissented, siding with Sotomayor's position. Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007)
• Taxes (Deductability of trust fees): In 2006, Sotomayor upheld a lower tax court ruling that certain types of fees paid by a trust are only partly tax deductable. The Supreme Court upheld Sotomayor's decision but unanimously rejected the reasoning she adopted, saying that her approach "flies in the face of the statutory language." Knight vs. Commissioner, 467 F.3d 149 (2006)
• Finance (Rights of investors to sue firms in state court): In a 2005 ruling, Sotomayor overturned a lower court decision and allowed investors to bring certain types of fraud lawsuits against investment firms in state court rather than in federal court. The lower court had agreed with the defendant Merrill Lynch's argument that the suits were invalid because the Securities Litigation Uniform Standards Act of 1998 required that such suits be brought only in federal court. The Supreme Court unanimously overturned Sotomayor's ruling in an 8-0 decision, saying that the federal interest in overseeing securities market cases prevails, and that doing otherwise could give rise to "wasteful, duplicative litigation." Dabit vs. Merrill Lynch, 395 F.3d 25 (2005)
• Health Insurance (Reimbursement of insurance benefits): In 2005, Sotomayor ruled against a health insurance company that sued the estate of a deceased federal employee who received $157,000 in insurance benefits as the result of an injury. The wife of the federal employee had won $3.2 million in a separate lawsuit from those whom she claimed caused her husband's injuries. The health insurance company sued for reimbursement of the benefits paid to the federal employee, saying that a provision in the federal insurance plan requires paid benefits to be reimbursed when the beneficiary is compensated for an injury by a third party. The Supreme Court upheld Sotomayor's ruling in a 5-4 opinion. Justices Breyer, Kennedy, Souter, and Alito dissented. Empire Healthchoice Assurance, Inc. vs. McVeigh, 396 F.3d 136 (2005)
• Civil Rights (Right to sue federal government and its agents): Sotomayor, writing for the court in 2000, supported the right of an individual to sue a private corporation working on behalf of the federal government for alleged violations of that individual's constitutional rights. Reversing a lower court decision, Sotomayor found that an existing law, known as "Bivens," which allows suits against individuals working for the federal government for constitutional rights violations, could be applied to the case of a former prisoner seeking to sue the private company operating the federal halfway house facility in which he resided. The Supreme Court reversed Sotomayor's ruling in a 5-4 decision, saying that the Bivens law could not be expanded to cover private entities working on behalf of the federal government. Justices Stevens, Souter, Ginsburg, and Breyer dissented, siding with Sotomayor's original ruling. Malesko v. Correctional Services Corp., 299 F.3d 374 (2000)
• Intellectual Property (Distribution of freelance material): As a district court judge in 1997, Sotomayor heard a case brought by a group of freelance journalists who asserted that various news organizations, including the New York Times, violated copyright laws by reproducing the freelancers' work on electronic databases and archives such as "Lexis/Nexis" without first obtaining their permission. Sotomayor ruled against the freelancers and said that publishers were within their rights as outlined by the 1976 Copyright Act. The appellate court reversed Sotomayor's decision, siding with the freelancers, and the Supreme Court upheld the appellate decision (therefore rejecting Sotomayor's original ruling). Justices Stevens and Breyer dissented, taking Sotomayor's position. Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997)
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Old May 27, 2009, 05:22 AM   #35
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She's had 10 reversals out of 14 of her cases that went before the Supreme Court.
Two cases upheld, but her reasoning was cited unanimously as faulty.
One case pending.
And one case that was actually upheld clean.
Impressive record.
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Old May 27, 2009, 06:42 AM   #36
Bartholomew Roberts
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I believe that circuit courts should not wander off on their own to reconsider Supreme Court decisions. Presser (as objectionable as it may be) is still "settled law" until the Supreme Court says otherwise. Maloney ran face first into Presser while Nordyke found a way around it.
Well, it shows the difference a good lawyer makes at least. Nordyke did not challenge the "settled law" aspect of Presser, it simply used the same due process through incorporation argument that has been used to drive around Slaughterhouse without overturning it (and used by the Second Circuit I might add, and likely used by Sotomayor in other arguments). The Second recognized that the issue was there and then ruled only on the direct aspect of the challenge - thought admittedly, Maloney's lawyer didn't do much more than throw in a one liner equivalent to "Hey, you know selective incorporation through due process is likely!"

I have to admit though, after looking at the short list of other candidates, Sotomayor is still probably one of the better outcomes we could have expected given an unbashedly anti-gun President and a filibuster proof majority in the Senate.
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Old May 27, 2009, 07:47 AM   #37
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I believe that circuit courts should not wander off on their own to reconsider Supreme Court decisions. Presser (as objectionable as it may be) is still "settled law" until the Supreme Court says otherwise. Maloney ran face first into Presser while Nordyke found a way around it.
For the most part I agree. However, when more recent Supreme Court precedent seems to support a different interpretation I am OK with Circuit courts using that precedent to reach a conclusion different from the Supreme Court over 100 years ago.

I don't consider it wandering when the Supreme Court has laid out a map.
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Old May 27, 2009, 08:13 AM   #38
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Correct me if I'm wrong, but was the person that she is replacing an anti anyway? If so it would seem that nothing has been made worse its just about the same.
One fundamental difference is that Souter was an outsider. He went his own way and had little effect outside of his vote. Sotomayor is seen as a consensus builder. She has far more ability to sway people to her side.
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Old May 27, 2009, 08:15 AM   #39
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True I am tired about race and such playing into qualifications. Why cant we just have no picture of this person. Just there history and record.
Personally I believe the one fair presidential election we could have would be via radio without pictures or clips running 100 times daily perhaps it would force people to listen rather then take the American Idol route to an election, but it won't happen and certainly we will continue to elect all show not substance.


Quote:
Being the first in something does not make one highly qualified......
Agreed, I grow weary of the race card and how great it is to be first, how about qualified for the criteria,but the far left has survived on race issues and dividing America.
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Old May 27, 2009, 08:52 AM   #40
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The part that troubles me the most is her quote ;

Quote:
"All of the legal defense funds out there, they're looking for people with court of appeals experience. Because it is - court of appeals is where policy is made.
The biggest problem I have is seeing a nominee that redily admits that she believes in "Judicial legislation" .
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Old May 27, 2009, 08:57 AM   #41
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Colt1911forever has made the statement a few times that Sotomayor was put on the bench by Bush 41. That's actually a mischaracterization of what really happened. There was an arrangement in New York: for every X number of appointments controlled by the party in power, the party out of power (from 1980 through 1992, the Democrats) would get Y number (a smaller number, but at least something, which is better than nothing)...

That is how Sonia Sotomayor was nominated by Bush-41. She was a selection of Democratic Sen. Pat Moynihan. The Republicans agreed to her appointment in order to ensure that Moynihan would not block nominees urged by Republican Sen. Al D’Amato.

...Sotomayor was not a Republican idea; she was a Republican accommodation.
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Old May 27, 2009, 09:00 AM   #42
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She certainly indicates she believes in legislation from the bench based on her statement. The conservatives will have a hard time opposing her without inflaming the Hispanics and can't afford to loose their support in upcoming elections. She's exactly what O wanted - a very liberal, activist jurist and one that will be difficult - probably impossible - to block.
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Old May 27, 2009, 09:09 AM   #43
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Is there a chance to get incorporation settled before she arrives (if confirmed)?
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Old May 27, 2009, 09:42 AM   #44
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I doubt it; but Sotomayor might recuse herself if Maloney makes it to SCOTUS first, since she handled that at the lower court. Although, I'd rather she stayed and Nordyke or Chicago came first as Maloney is not the best case for us facts-wise.
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Old May 27, 2009, 09:58 AM   #45
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The Second recognized that the issue was there and then ruled only on the direct aspect of the challenge
Judicial activism comes in many forms, one of which is going beyond the question(s) posed to the court. SCOTUS recognized the issue of incorporation in Heller, but only ruled on the direct question of handguns in the home.
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Old May 27, 2009, 10:19 AM   #46
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She's had 10 reversals out of 14 of her cases that went before the Supreme Court.
Only 7 cases were actually listed, first giving the case names and then a short discussion of each.

Based on the list provided, the record is 5 reversed, 1 upheld, and 1 pending.
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Old May 27, 2009, 10:21 AM   #47
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One fundamental difference is that Souter was an outsider. He went his own way and had little effect outside of his vote. Sotomayor is seen as a consensus builder. She has far more ability to sway people to her side.
Interesting. I draw exactly the opposite conclusion from what I read of her. She is an intellectual lightweight, a bully on the bench and one who has achieved very little respect from her peers on the 2nd Circuit. Her opinions have been often as not overturned on appeal, and even when not overturned have been resoundingly critiqued as having little substance and missing the primary points of legal contention.

She is exactly what we should have come to expect from our current President - an advocate and race hustler who will unfailingly take every opportunity to pursue policy agendas and who will "interpret" the Constitution in a tortured fashion in order to achieve these ends.
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Old May 27, 2009, 10:36 AM   #48
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Interesting. I draw exactly the opposite conclusion from what I read of her. She is an intellectual lightweight, a bully on the bench and one who has achieved very little respect from her peers on the 2nd Circuit. Her opinions have been often as not overturned on appeal, and even when not overturned have been resoundingly critiqued as having little substance and missing the primary points of legal contention.

She is exactly what we should have come to expect from our current President - an advocate and race hustler who will unfailingly take every opportunity to pursue policy agendas and who will "interpret" the Constitution in a tortured fashion in order to achieve these ends.
Indeed. Unfortunately, he has at least until the midterm elections to destroy our country to his hearts content. She will be approved and she will likely be the worst justice in history, much like most of the rest of the Obama presidency.
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Old May 27, 2009, 10:46 AM   #49
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So the court makes policy now. Is that right? Anyway, did you ever think that some of the people here just might have a left-wing agenda?
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Old May 27, 2009, 10:53 AM   #50
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We're done - IMHO, if we start to posit agendas by list members, race hustler, we've exhausted useful comment on the actual L and CR issues.

Thanks for previous informative comment on her record and history.

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