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Tuesday, June 30, 2009

 

 

To paraphrase the poet T. S. Eliot, Senate Republican opposition to Sonia Sotomayor basically ended yesterday - not with a bang, but a whimper.

In theory, the U.S. Supreme Court's Monday decree - a 5-4 ruling that favors white New Haven firefighters, and reverses a federal appeals court decision that Sotomayor joined - should be catnip for the GOP. In theory, all the elements of a classically simplistic attack message are ready and waiting.

For starters, Senate Republicans could try to paint the high court ruling as a major embarrassment for Sotomayor; here she is, seeking to ascend to the high court, yet her own prospective colleagues have just reversed her - just as she has been reversed on other cases in the past. Secondly, they could try to argue that Sotomayor's appeals ruling - which slapped down the white firefighters in a mere 134 words - was essentially an endorsement of affirmative action for minorities, at a time when most Americans tell pollsters that they oppose affirmative action. Thirdly, the Republicans could try making the broader case that Sotomayor's affirmative action empathy is typical of how this so-called "wise Latina" would be likely to rule in other cases.

And yet the Republicans have barely uttered a whimper.

Of course, there have been a few scattered exceptions. Senate minority leader Mitch McConnell said yesterday that Sotomayor, when ruling against the white firefighters at the appeals level, "may have allowed her personal or political agenda to cloud her judgment," and his colleague John Cornyn of Texas uttered a few carefully-chosen words about the need for "evenhanded application of the law." The strongest anti-Sotomayor attack was arguably launched by Tom Price, a Republican from Georgia, but, as a House member, he can't vote on the confirmation anyway. Price insisted that Sotomayor "has a record of being blinded by empathy for one group while endorsing discrimination against others," and I'll shred that statement momentarily. All told, the once-vaunted Republican message machine was functioning yesterday like a '92 Chrysler in need of a valve job...and its owners appeared to prefer it that way.

The question is why the Republicans are being so reticent. The short answer is that the Republicans have finally seen the light and realized that full-blown opposition to Sotomayor would be tantamount to political suicide, given the fact that most Hispanic voters (members of the fastest-growing cohort in the electorate) already view the GOP as a toxic brand.

The longer answer is that the high court's reversal of Sotomayor in the firefighter case does not easily lend itself to political exploitation; put another way, it's no magic bullet. If the Republicans tried to fire it, they'd blow off their own toes. They'd get roughly the same political mileage out of Ricci v. DeStefano as the John McCain campaign got out of ACORN.

Here's why:

1. Some conservative activists, anticipating that the high court would reverse Sotomayor in the white firefighter case, have claimed for weeks that such an event would be typical for Sotomayor, because she supposedly has "an extremely high rate of her decisions being reversed." It is, as always, downright fascinating to behold the conservatives as they simply make stuff up.

Sotomayor has authored roughly 380 appeals court decisions, and she has now been reversed by the highest court...four times. The activists apparently consider that to be an "extremely high" reversal rate, but here's the thing: Bush nominee Samuel Alito, prior to his own ascent, had been reversed by the highest court...four times. And on a fifth occasion, Justice Sandra Day O'Connor, while reviewing one of Alito's appeals court rulings, tore the guy apart in great detail, assailing his "logic, approach, and conclusions" in a key abortion case.

Maybe it would look bad if Sotomayor had been reversed, say, three times in rapid succession, right on the eve of her nomination. Imagine the outcry on the right. Yet that's exactly what happened to federal judge Warren Burger in 1969. He was reversed by the high court three times that year - the same year that Richard Nixon successfully tapped him to become the new Chief Justice.

2. Conservative activists have hoped to paint Sotomayor's appeals ruling against the white firefighters as evidence of her pro-minority "agenda." In the words yesterday of Georgia congressman Price, she supposedly "has a record of being blinded by empathy for one group while endorsing discrimination against others." Another lie. Her record is precisely the opposite.

Tom Goldstein, a lawyer and lecturer at the Stanford and Harvard Law Schools, and author of the Scotusblog website, recently tallied the 97 race-related cases that Sotomayor and her colleagues have handled during her 11 years on the appeals bench. Of those 97 cases, 88 ultimately involved discrimination issues. In those 88 cases, take a guess how many times Sotomayor and her colleagues ruled in favor of the discrimination claimants:

Ten times. Which means that her batting average in favor of the discrimination position was approximately .114.

Moreover, on a few occasions, she even dissented in favor of the white person; most notably, in a New York City police department case, she argued in vain that a white bigot should not be fired for circulating racist materials.

3. More than a month after Sotomayor's debut as nominee, there's scant evidence that the public is troubled by her ethnicity or her views. The latest ABC News-Washington Post survey, released Sunday, reports that only 22 percent of Americans have concerns that her racial background might play a role in how she decides cases. All told, 62 percent of Americans say that she should be confirmed. That's the highest percentage for a Supreme Court nominee in several decades (as measured by the ABC-Post poll, then and now), which strongly suggests that, while Americans are broadly opposed to affirmative action, they don't believe that Sotomayor should be judged on that one issue.

All of which is why, with respect to Sotomayor and the impending confirmation hearings, the Republicans apparently have so little to say. Over to you, T. S. Eliot:

Our dried voices, when
We whisper together
Are quiet and meaningless
As wind in dry grass

-------

Much like Bill Murray in the film Groundhog day, erstwhile Republican senator Norm Coleman keeps waking up to discover that he has lost the same election. Today, it happened to him yet again

 

 

Posted by Dick Polman @ 11:27 AM  Permalink | 98 comments
Comments   
Posted 02:02 PM, 07/01/2009
Vandy
"Medicaire spent less on administrative costs (they apparently do, even based upon any of your links) ? I am all for a free market solution, so long as three criteria are met. One - anyone who wishes to purchase health insurance is afforded the opportunity. Two - Said insurance must be remotely affordable (yes, that's a loose term, but tens of thousands of dollars a year isn't affordable). Three - Someone must explain how to insure the uninsurable." I really disagree on the administrative costs, as supported by the MI paper on full accounting. As to the circular logic of providing insurance to those whom are deemed, in fact, to be uninsurable, the first thing you do is require insurance for all persons. Currently, the minimum coverage laws make it prohibitively expensive for many healthy young people to purchase insurance. If we can get more of those people into the system while they're young and healthy, that pays major dividends down the road. For the uninsurable, why not defined benefit health insurance plans (assuming re-insurance / risk pools aren't available)? Nothing's perfect for that population, but it seems reasonable: http://www.guaranteed-health-insurance.com/definedbenefit.htm
Posted 11:52 AM, 07/01/2009
still_independent
Vandy: where have I ever supported a public option? Do you assume it because we argued over whether or not Medicaire spent less on administrative costs (they apparently do, even based upon any of your links) ? I am all for a free market solution, so long as three criteria are met. One - anyone who wishes to purchase health insurance is afforded the opportunity. Two - Said insurance must be remotely affordable (yes, that's a loose term, but tens of thousands of dollars a year isn't affordable). Three - Someone must explain how to insure the uninsurable.
Posted 11:17 AM, 07/01/2009
JimR
Tom, the U.S. getting involved in coup attempts gets us in trouble. The Shah in Iran being one of the glaring examples.
Posted 10:56 AM, 07/01/2009
CD75
Mad Mojo, Indy, TL and others: Which group of firefighters would you want to come save you and your burning home: 1) those that proved they have the skills to be a good firefighter via a test, or 2) those who failed the test, but get the job anyway?
Posted 10:36 AM, 07/01/2009
puttinonthefoil
Vandy, *you* might be confining yourself strictly to details of the Ricci case, but as you can see, code-phrases are easily spread. Why are we talking about it in the first place? You're right, maybe we shouldn't, and this leads full circle - through all the gymnastics - to Polman's original point, namely that there is very little political mileage to be gotten out of this particular ruling, hard as some might try. And Tom, dude, it is not as simple as "supporting democracy". I think our history and current political/diplomatic position vis-a-vis Iran is a little different than Honduras, no?
Posted 10:27 AM, 07/01/2009
Vandy
"Can we just go back to arguing about healthcare please?" Sure; I posted at 6:10.
Posted 09:58 AM, 07/01/2009
still_independent
Vandy: again, put the comments in the context of what I was responding to. Yes, even at 3:02 I was responding to CD's comments. I can't that I've posted more than a dozen times on one of his a**inine, untrue comments - and it's not even because of him. For the last and final time, none of the opinions criticized the 2nd court for "merely issuing an order". Also again - of course they disagreed with the legal reasoning - they overturned it. And even out of context - they didn't "criticize" the court. They disagreed with the legal basis for the decision. Can we just go back to arguing about healthcare please?
Posted 09:16 AM, 07/01/2009
swedesboromike
Think for myself- I am going to disect your post. You said " the neocons rubber stamped 3 trillion for the Iraq war ". Well that is not true. First of all you are off by more than 2 trillion. 2nd of all the cost has been spread out over 6 years. and 3rd of all democrats like Hillary, Dodd, Kerry, Edwards, Schumer, Reid voted in favor of the authorization of force. But don't let facts get in the way, right? Then you want on to say " we have our panties in a bunch over Obama's stimulus ". Tough comparison since the Iraq war would account of 1/6th of the yearly budget that the stimulus package is costing us. Then you went on to say that "they pay for people to die but not to recover". The fact of the matter is that one of the largest costs to the Iraq war is the advances in modern medicine that allow more soldiers to live as a result of the injuries and the subsequent rehab. In conclusions I guess a bumper sticker comment like your post gets you kudos from your liberal buddies but the reality is that your comment is grossly inaccurate.
Posted 09:15 AM, 07/01/2009
jwad (D)
Think for myself if the stimulus actually did anything to help people recover you might have an argument. It's doing nothing.
Posted 08:48 AM, 07/01/2009
swedesboromike
Think for myself- I think you are using the wrong username because it would appear you are not thinking at all, but regurgitating left wing talking points. According to the LA Times the cost of the Iraq war since 2001 is 686 billion ajusted for inflation. So you are more than 2 trillion off and in case you missed it, the surge worked and we have left Iraq's cities according to the Sofa agreement put in place by George Bush. The cost of continuing no fly zones over Iraq would have eventually exceeded what we spent to free the country from tyranny. As for healthcare I think what you ignore is that even according to liberal stats 260 million of our 300 million population have healthcare. Lumped into the 40 million who you say have no healthcare is illegal aliens and people who choose not to purchase a plan and even people who went one calander day in a year without coverage. So like most liberal stats you play games with the numbers to advance your agenda. My problem with your line of thinking is that in the end you will have a burearacracy to run it, higher taxes to pay for it, and litle to show for it. Liberals always seem to fail to look at the unintended consequences of the agenda because it is mostly driven by emotion and not deductive reasoning.
Posted 08:29 AM, 07/01/2009
Think for myself
The neocons rubber stamped 3 trillion for the Iraq war w/o a peep but got their panties in a bunch with Obama's stimulis bill. How hypocritical. They pay for people to die but not for Americans to recover. Sad.
Posted 07:52 AM, 07/01/2009
swedesboromike
madmojo-Many who support strong national defense have family members who served in Iraq and Afghanistan. Sarah Palin and John McCain to name a few. It would appear your remarks are grounded in emotion and not facts.
Posted 07:23 AM, 07/01/2009
Vandy
"he is indeed implying "activism" through his insistence on "even handed application of the law." Nonsense. Even-handed application of the law--which seems like a fair thing to be interested in, by the way!--has nothing to do with activism.
Posted 06:13 AM, 07/01/2009
Vandy
"You're a smart guy, so don't all of a sudden play stupid and pretend that conservatives aren't ranting about "activism". My wife would disagree vehemently with the first part of your statement, but my point was that the criticism from conservatives about Sotomayor IN THE RICCI CASE wasn't about judicial activism. That criticism exists, but it's based on other issues/statements, not her (in)action in the Ricci case.
Posted 06:10 AM, 07/01/2009
Vandy
"if anyone was proposing a single-payer system." It helps provide a look into essentially a controlled experiment that helps delve into the hidden costs of a public option, which you do support.
Posted 06:08 AM, 07/01/2009
Vandy
"I don't care whether or not any member of the Supreme Court agreed with the legal reasoning behind the district court or the appeals court." That wasn't quite true at 3:02, Still, when you said "at no point (that I could find) did the majority ruling or the dissent criticize the 2nd court of appeals."
Posted 02:45 AM, 07/01/2009
JimR
So, almost evey day CD posts some loony rant, many having no substance - simply made up on the spot, and never responds to challenges....Maybe CD is a Polman creation to fan the flames. This thread certainly contains a lot of give and take which started on a post of little substance. ( It's the middle of the night -I'm just wondering)
Posted 11:36 PM, 06/30/2009
still_independent
tom: you are correct, I left that out and thought I hadn't. And it changes nothing. Please try and understand what I'm saying. I'm trying not to get frustrated and sarcastic. I don't care whether or not any member of the Supreme Court agreed with the legal reasoning behind the district court or the appeals court. I'm not a lawyer, nor do I claim to be a Title VII expert. What I have been responding to, and I've said this several times now, are CD's statements like "The U.S. Supreme Court scolding Sotomayer for her lack of a written opinion is unprecendented." and "... she issued a mere order on the decision without writing an opinion. Both the majority and Bader-Ginburg's dissent noted that this was very troublesome". These statements are patently false. Again, I am not defending her (or anyone else's) legal reasoning in this case. All I am pointing out is that at no point in either the majority decision or the dissent did the US SC take issue witht he fact that the 2nd court of appeals "only" issued a "mere order". As I posted a bit ago - OBVIOUSLY the majority disagreed with the legal basis for the ruling - they overturned it. What is so difficult to get?
Posted 11:29 PM, 06/30/2009
tom - wilmington, de
still_independent..so you do not keep asking the same question two weeks from now, I will try to answer. Judicial activism is when the courts do not limit their rulings to the dispute before them, but instead establish a new rule to be applied broadly to issues not presented before them. It is also establishing a new law where none exists. For example, in our Constitution, the Legislature writes the laws, the Executive enacts the laws, and the Judiciary INTERPRETS the laws. Judicial activism is when the Judiciary makes the laws. In the Ricci case, no new template was made, no precedent overturned (the Bushey case cited here is not even mentioned in the decision/dissent), and they decided on the statutory merits of the case ONLY....not changing anything in Title VII. This is not judicial activism. As for the right to bear arms....that has been decided several times and is actually in the Constitution...so what is your point regarding that little item? Maybe it is just the "interpretation" that changed recently in the courts, but not the law.
Posted 11:23 PM, 06/30/2009
flyers stink
Justice is finally served, even in a socialistic regime.
Posted 11:15 PM, 06/30/2009
tom - wilmington, de
still_independent...Sorry, but you left out part of Ginsburg's footnote...and I can see why. To wit..."10 The lower courts focused on respondents’ “intent” rather than on whether respondents in fact had good cause to act. See 554 F. Supp. 2d 142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Courtis indeed appropriate, New Haven should be the prevailing party." See the difference with that one sentence you left out of your 3:40 post...which you stated was quoted "verbatim" from Ginsburg? She faulted the 2nd circuit court from concentrating on the wrong matters in the case...
Posted 10:55 PM, 06/30/2009
tom - wilmington, de
Obama and single payer...from September, 2008..."But Obama repeated that he rejects an immediate shift to a single-payer system. “Given that a lot of people work for insurance companies, a lot of people work for HMOs. You’ve got a whole system of institutions that have been set up,” he said at a roundtable discussion with women Monday morning after a voter asked, “Why not single payer?” “People don’t have time to wait,” Obama said. “They need relief now. So my attitude is let’s build up the system we got, let’s make it more efficient, we may be over time—as we make the system more efficient and everybody’s covered—decide that there are other ways for us to provide care more effectively.” Translation? No single payer now...but we will eventually get there.
Posted 10:53 PM, 06/30/2009
still_independent
tom/Vandy: all this back and forth is based upon two statements by CD. "The U.S. Supreme Court scolding Sotomayer for her lack of a written opinion is unprecendented." and "... she issued a mere order on the decision without writing an opinion. Both the majority and Bader-Ginburg's dissent noted that this was very troublesome". NEITHER OF THESE IS TRUE. That is all I was stating. Of course the majority disgreed with the legal reasoning behind both the district court and the appellate court - they overturned it. That point is indisputable. What they didn't do in any way was criticize the snd court for only issuing a "mere order"... Vandy, when you wrote "Still, are you sure Ginsburg didn't say/write anything else, which you happened to omit" - the short answer is no. The entire "criticism" is in footnote 10. of Ginsburg's dissent, which I quoted in its entirety at 3:40 PM. And Tom: what is the definition of activist judge now? I can't keep it straight. Is it rulings that "create law"? That, unfortunately, is many, if not most, Supreme Court rulings. Is it only the "creation of law" if you disagree with it? As an example, until last year, the Supreme Court had never ruled that there was an individual right to bear arms. Suddenly, there is. Is that judicial activism? I'm sure you will say no, but that's because you happen to agree with it.
Posted 10:47 PM, 06/30/2009
tom - wilmington, de
foil...actually I believe Vandy and I are in agreement....it was the court in the Bushey which was activist (note how no liberal addresses this position, or even comments on the Bushey case). In the Ricci case, which again was not based on Bushey, the court simply righted a wrong. Also, right...Honduras is not Iran...but Democracy is Democracy no matter where practices. The problem lies in the Obama administration not supporting the "rule of law" (as they constantly like to say) in Honduras, which was acting in full accordance of their constitution and Supreme Court rulings. In Honduras, the "president" was trying to do an end run around the constitution (with full support from Hugo Chavez) and install himself to another term by calling a special election. The Honduras Supreme Court ruled against him saying it violated the Constitution. So, are you saying in Iran we should stay mum when a dictator steals an election, but it is okay to support a dictator in Honduras? In Iran, we did not support the protestors so as not to meddle, but in Honduras we can meddle and support the president/dictator to be contrary to that country's constitution? My point is, why did Obama choose not to support Democracy in both instances? Why not just stay out of Honduras like we did Iran?
Posted 10:39 PM, 06/30/2009
tom - wilmington, de
Mojo...I do not know who would fight the wars....who is fighting Obama's increased presence in Afghanistan? Surely not him, Axelrod, Plough, Rahmbo Emmanuel or any other of Obama's guys and gals. Think for myself should think for him/herself and compare the cost of the war in Iraq to the cost of the non-stimulating stimulus, the following omnibus, the Obama ballooning deficit, health care, climate change, the cost to the economy of rising interest rates and inflation, as well as the cost to the economy of Obama's soon to come tax increases. As for that climate change bill...I wonder if people like Mojo actually know what is in it...such as the portion of the bill which mandates national new residential construction to be 30% more efficient next year, and 50% more efficient two years after that; how, when selling an existing home, a person needs to have an energy audit by the EPA, upgrade all appliances to energy efficient models, perhaps put in new windows, doors, siding, roofing, insulation, etc etc etc even BEFORE putting it on the market. How is that for freedom.....it is more like back in East Berlin. But of course, it is in the climate change bill....so since Obama wanted it, to Mojo (of the higher intellect), it must be okay. And I am sure Mojo knew that was in the bill.....right?
Posted 10:37 PM, 06/30/2009
still_independent
Vandy: first, back to the medicare thing. Your cut-and-paste from (http://www.manhattan-institute.org/html/mpr_05.htm) is interesting (not really :) ) reading, if anyone was proposing a single-payer system. Unfortunately, no one is.
Posted 10:34 PM, 06/30/2009
puttinonthefoil
A few points - 1) Tom, I think Vandy would disagree with your most recent definition of "judicial activism" since you define it almost verbatim in a way that he is trying to disclaim. What's it going to be, guys? 2) Vandy, if you just look at Cornyn's statements available in Polman's post, you'll see he is indeed implying "activism" through his insistence on "even handed application of the law." You're a smart guy, so don't all of a sudden play stupid and pretend that conservatives aren't ranting about "activism" (Tom's post only confirms this line). 3) Honduras is not Iran. 4) Austin is not Texas. 5) Rollins went 0 for 5.
Posted 10:22 PM, 06/30/2009
tom - wilmington, de
Mojo...actually, the activists were the judges who ruled to overthrow the lower courts in the Bushey case...since they approved of the changing of grades of minorities to meet racial equality. The Ricci ruling, which, by the way was not based on Bushey just to clear the intellectual air, and since the Justices did not rule on their claim of having their 14th amendment rights violated (of course, by your standards I am just a nitwit and am surprised in your intellectual superiority you did not see that point), only dealt with New Haven having scrapped the entire test simply out of fear of a lawsuit. The Justices said they could not do that. I supposed if they had simply changed the scores of the black candidates, they would have been okay. But they did not do that. But more to the point.....the Bushey case was activism...since it created law...allowing the changing of test scores based simply on making them more equal. I wish some of my college professors had done that back during my college years....
Posted 10:15 PM, 06/30/2009
Think for myself
the neocons scream about obama's spending but didn't say a peep about the cost of his war in Iraq. i am really offended by that lack of accountability.
Posted 10:13 PM, 06/30/2009
tom - wilmington, de
Why is it, when an election in Iran is stolen, and protesters take to the streets, are beaten and shot, Obama and his administration keep silent so as not to be seen as meddling...much to the agreement of several posters to this site. BUT, when a President in Honduras acts in violation of his countries constitution, violates rulings of his countries Supreme Court, and goes against laws passed by his countries legislature, is supported by Hugo Chavez in his actions, then is chased away by the military acting to uphold the rulings of the countries Supreme Court...all in accordance with the country's Constitution, the Obama administration sees no harm in meddling and supporting the president/would be dictator? They have even called for his reinstatement and reports are that officials from the administration may meet with the chased away "president". Is this a contradiction? Is this supporting democracy, free elections, etc.?
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Posted 09:54 PM, 06/30/2009
swedesboromike
Madmojo- I am traveling to Austin in a few weeks. Maybe I will stay. LOL. Why the name calling? I like debating but when it disintigrates into you calling me a name I would say you are losing the debate. Republicans were not fiscally responsible either but that does not excuse quadrupling the deficit in one year while promising even more entitlements. I am for national defense, fiscal responsibility, and low taxes not necessarily the Republican party.
Posted 09:42 PM, 06/30/2009
Vandy
"more lectures about spending from the party that is responsible for 80% of the federal debt" If spending is so hateful to you, why are you supporting the QUADRUPLING of the deficit over what it was in Bush's last year??
Posted 09:40 PM, 06/30/2009
Vandy
"What liberals are correctly arguing is that Sotomayor was definitely not the judicial activist in this case." I honestly don't think that's the criticism by conservatives in this particular case, Mad. If you have proof that conservatives have labeled her conduct here as "judicial activism," then I guess I'm wrong (that's another concern based on other issues and her comments), but the issue here is the tacit thumbs-up to a clear case of reverse discrimination. Combined with her comment about hoping that a wise Latino woman would reach a better conclusion than a white male, that's worth a few questions. But whatever; she'll be confirmed and replace another liberal voice. Nothing changes.
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Posted 09:07 PM, 06/30/2009
Vandy
"judicial activist" So you define judicial activism as merely reversing a lower court's decision??
Posted 08:57 PM, 06/30/2009
swedesboromike
Madmojo- spare me the legal olympics. Sotomayer tows the liberal party line. Simple as that. She was nominated to be pro choice, anti gun, for affirmative action and to tow every single leftist ideology. Behind closed doors I am sure Obama had a long talk with this jurist.
Posted 08:53 PM, 06/30/2009
swedesboromike
Obama is the "Trojan Horse" President. Running on tax cuts and fiscal responsibility until elected then we see the real Obama. A man with what seams to be a deep rooted contempt for America and the free market and everthing that elevated this country to the highest standard of living in the world.
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Posted 08:50 PM, 06/30/2009
Vandy
"The "Democrat" was election." What does that mean, janann? The Democrats are in control of the White House and Congress; the people have spoken and I accept it. You have a filibuster-proof majority in the Senate, so sit back and enjoy the ride!
Posted 08:50 PM, 06/30/2009
swedesboromike
janan- except it is not good for the country. Cap and Trade, Employee Free Choice, Universal Healthcare, stimulus packages, insurmountable debt aren't good for the country. The satisfaction of having a " I told you so moment " is not worth the damage these far left policies will do. The man ran on a tax cut for 95% of Americans and fiscal responsibility. Where hath those promises gone?
Posted 08:44 PM, 06/30/2009
janann
Vandy, your cut and pastes are very fatiguing. - I'd appreciate it if you weren't so condescending and frankly a little less opinionated and a little more accurate. The "Democrat" was election and you eliltists have to accept that fact for the good of the country.
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Posted 08:31 PM, 06/30/2009
Fisher
"Billionaire investor George Soros added to the cautionary tone, saying that rising borrowing costs posed a threat to any eventual economic recovery. "As markets revive, fear of inflation will drive up interest rates, which will choke off recovery," he said at a breakfast hosted by the Wall Street Journal." Since those lacking common sence and think Obama politics is doing any good.
Posted 08:07 PM, 06/30/2009
tom - wilmington, de
Funny...liberals on this site are decrying the Ricci decision because there was already a precedent going in the other direction, and they consider this settled law. Gee, I guess then we should throw out every decision that went against a precedent since it was already settled law. Maybe the Supreme Court should just hang out a shingle that says "only cases where there is absolutely no precedent will be considered since it is already settled law. Liberals are actually arguing this? I guess when it reverses one of their favorites, it is judicial activism...but when it goes with their agenda it is judicial restraint. By the way....the Bushey decision also reversed the lower courts....just as the Supremes did in the Ricci case. Odd, isn't it?
Posted 08:02 PM, 06/30/2009
Vandy
Good point, Tom; now THAT is activism!
Posted 07:59 PM, 06/30/2009
tom - wilmington, de
Is it true that in the Bushey case, the testing agency raised the scores of minority candidates so they were more equal with the white candidates? And the Supreme Court affirmed this as "okay"? It is "okay" to artificially raise one person's score just because of race? And, if true, you consider what just happened in the Ricci case to be judicial activism but now what happened in the Bushey case? Things get curiouser and curiouser.
Posted 07:54 PM, 06/30/2009
tom - wilmington, de
still_independent....from the Wall Street Journal editorial page paraphrasing Justice Ginsburg..."On this question of the Second Circuit's mishandling, the Justices agreed unanimously yesterday. In footnote 10 of her dissent, Justice Ginsburg wrote that while she disagreed with the decision to reverse the lower court ruling, there were questions about how it was decided. Based on the lower court's mistaken focus on intent, she wrote, "ordinarily a remand for fresh consideration would be in order." So I guess if you take that into consideration, there were others besides Conservatives who disagreed with the way Sotomayor and her colleagues dissed the case.
Posted 07:46 PM, 06/30/2009
Vandy
Besides, liberal, the NY Times discovered that the summary opinion was more of a compromise within Sotomayor's court: "In the Second Circuit, Judge Sotomayor was the junior judge on the panel, which also included Judge Rosemary S. Pooler, who was the presiding judge at the argument, and Judge Robert D. Sack, who did not attend due to illness. In the end, according to court personnel familiar with some of the internal discussions of the case, the three judges had difficulty finding consensus, with Judge Sack the most reluctant to join a decision affirming the district court. Judge Pooler, as the presiding judge, took the leading role in fashioning the compromise. The use of a summary order, which ordinarily cannot be cited as precedent, was part of that compromise." -http://www.nytimes.com/2009/06/06/us/politics/06ricci.html
Posted 07:32 PM, 06/30/2009
Vandy
"...who don't know how our court system works. In the New Haven case, the central issue had already been decided by the Supreme Court in 1984. The lower court applied this case to the New Haven facts, and Sotomayor's appeals court simply affirmed the result. There was no need for a full opinion since the issue would generally have been considered settled--except for the fact that our current right-wing activist supreme court is going out of its way to change settled precedents and legislate new law different from what Congress intended." Baloney. First of all, what Supreme Court decision are you referring to in 1984? I'm aware of the second circuit court's "Bushey" decision, which itself was activist. It's not judicial activism for a higher court to correct the faulty decision of a lower court, and there's absolutely nothing illogical about Kennedy's opinion (which most Americans agree with, whatever poll you wish to cite). "Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. -- Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair. -- The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe."
Posted 07:08 PM, 06/30/2009
Vandy
"To paraphrase what they're saying, it's just the obvious point that whatever the government decides to do, it must tax people and taxes are not nice." They're more than not nice, liberal, and the point was to discuss the hidden administrative costs that our society would bear.
Posted 06:54 PM, 06/30/2009
liberal
Again, a lot of the Sotomayor criticism is cynically contrived to appeal to the large segment of the general public who don't know how our court system works. In the New Haven case, the central issue had already been decided by the Supreme Court in 1984. The lower court applied this case to the New Haven facts, and Sotomayor's appeals court simply affirmed the result. There was no need for a full opinion since the issue would generally have been considered settled--except for the fact that our current right-wing activist supreme court is going out of its way to change settled precedents and legislate new law different from what Congress intended.
Posted 06:50 PM, 06/30/2009
liberal
Vandy--the stuff you quoted is from an organization with an axe to grind. To paraphrase what they're saying, it's just the obvious point that whatever the government decides to do, it must tax people and taxes are not nice.
Posted 06:15 PM, 06/30/2009
Vandy
Couldn't have said it better, Mike!
Posted 05:42 PM, 06/30/2009
swedesboromike
I'll sum up what Vandy is saying. If you think healthcare is expensive now wait until you get " free " healthcare.
Posted 05:14 PM, 06/30/2009
Vandy
Another perspective, Still: "For the private market, non-benefit costs are about 11-14 percent of total premiums, while the direct administrative costs reported for Medicare are about 3 percent of Medicare outlays. A reasonable allocation of a share of outlays for general government functions and for the administration of justice increase direct and indirect administrative—that is, non-benefit—outlays as reported in the federal budget to about 6 percent of Medicare outlays. A shift to a single-payer system would yield net savings of about $99.6 billion (as of 2006) in reported administrative costs. This would yield about $2100 in resources for additional health-care consumption for each of the 47 million uninsured. But the increase in that consumption can be estimated conservatively in a range of $1700 to $3400; the lower-bound estimate would yield net aggregate savings of about $19 billion per year, while the upper-bound estimate would yield a net aggregate funding shortfall of about $61 billion annually. Accordingly, a midpoint estimate of the funding shortfall for reported costs would be about $21 billion per year. Because the federal tax system is an institution necessary for financing all federal programs, including Medicare, the unmeasured costs borne by the economy as a result of the tax system are a real cost of federal spending, and the lowest plausible assumption about the magnitude of that excess burden has the effect of raising the non-benefit costs of Medicare to about 24-25 percent of Medicare outlays, or about double the net cost of private health insurance. A more realistic assumption raises the true cost of delivering Medicare benefits to about 52 percent of Medicare outlays, or about four to five times the net cost of private health insurance. The purported savings in true economic costs that would be yielded by a shift to a single-payer system are highly problematic under a full accounting." http://www.manhattan-institute.org/html/mpr_05.htm
Posted 05:09 PM, 06/30/2009
swedesboromike
This Supreme Court stuff is all quite a bore. The legal olympics is utterly idiotic. It really boils down to how would a jurist vote on the hot button issues. plain and simple. Obama asked Sotomayer if she will tow the party line and she said yes and she was nominated. It's really that simple. And I don't claim that the Republicans have any moral high ground on this as well.
Posted 04:52 PM, 06/30/2009
CD75
The U.S. Supreme Court scolding Sotomayer for her lack of a written opinion is unprecendented. It also shows the lack of serious she has. The dismissive treatment of the firefighters' claim by her even drew the censure of fellow Second Circuit Judge Jose Cabranes. Mr. Cabranes said the court and Sotomayer had "failed to grapple with issues of exceptional importance."
Posted 04:32 PM, 06/30/2009
Vandy
"what Ginsburg actually wrote..." Still, are you sure Ginsburg didn't say/write anything else, which you happened to omit: "Still, Ginsburg’s reasoning differed from that of Sotomayor and the appeals court panel. Ginsburg said the lower courts should have asked whether New Haven had an objective basis for fearing it would be successfully sued by minority firefighters under Title VII of the 1964 Civil Rights Act. The trial and appellate courts focused on the city’s “intent,” rather than the underlying evidence, she said. New Haven argued that it had a “good faith” belief that cancellation was necessary to avoid liability under Title VII."
Posted 04:29 PM, 06/30/2009
Frito1
Mad Mojo - “Does any of this really matter?” It does, if Sarah Palin says it...not so much if the current Vice President does. Imagine the press coverage if Palin had made some of the verbal gaffes our current Vice President has? It was unreal the amount of reporters that parachuted into Alaska and the amount of scrutiny her past received compared to other Candidates during the campaign. Remember this humorous headline during the campaign... "Palin doesnt pay expense report in 1995!" I agree that Palin leaves a lot to be desired as far as judgment and knowledge in certain areas but the Press' obsession and and obvious agenda in trying to destroy her make some people want to defend her instead of discarding her.
Posted 04:21 PM, 06/30/2009
Vandy
"where is he being critical of the second court?" What? Does this sound like he's patting the Second court on the back?? "What they have a right to demand is evenhanded enforcement of the law. And that is what, until today’s decision, has been denied them."
Posted 04:18 PM, 06/30/2009
still_independent
Vandy: what you're quoting from is not the majority's ruling. You are correct that Alito wrote that. It wasn't in the majority ruling however - that was authored by Kennedy. Alito's concurrence represent's his views, not those of the majority (although Scalia and Thomas signed on to the concurrence, Kennedy and Roberts did NOT). And in any case, where is he being critical of the second court? He's being critical of Ginsburg's dissent. He starts with "I join the Court’s opinion in full. I write separately onlybecause the dissent, while claiming that “[t]he Court’srecitation of the facts leaves out important parts of thestory,” post, at 2 (opinion of GINSBURG, J.), provides an incomplete description of the events that led to New Ha-ven’s decision to reject the results of its exam."
Posted 04:16 PM, 06/30/2009
Vandy
And Still, to drive the point home, Medicare is NOT running an annual surplus anymore. "STEPHEN OHLEMACHER AP Features May 12, 2009 18:36 EDT Social Security and Medicare are fading even faster under the weight of the recession, heading for insolvency years sooner than previously expected, the government warned Tuesday. Medicare already is paying out more money than it receives."
Posted 04:12 PM, 06/30/2009
chasing history
I don't know if anyone saw this in the Sunday Business section, but it does make a case that our current health insurance system limits innovation and risk taking. http://www.philly.com/philly/business/49352437.html
Posted 04:11 PM, 06/30/2009
Vandy
"Also, the "raising capital" argument is a specious one, as (to date), Medicaire runs a surplus - although this will change relatively soon." Lots of profitable firms in the public sector raise money through debt or equity offerings. Moreover, firms that aren't profitable but still have a positive, though dwindling, cash balance (the best analogy for Medicare) will ABSOLUTELY be looking to raise money. It is not specious, because investors looking at these sort of numbers would demand a high rate of return to compensate them for putting more money into a system that will still lose money because it's not accountable.
Posted 04:08 PM, 06/30/2009
Vandy
"Both the majority and Bader-Ginburg's dissent noted that this was very troublesome" - this never occurred." It's fair to say that Ginsburg was of course not troubled, but Alito's comments do reflect a bit of disdain on the majority's side, don't you think? "“Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment,” Alito wrote. “The Court of Appeals then summarily affirmed that decision.” “The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law. And that is what, until today’s decision, has been denied them.” Perhaps it's just judicial hazing for the new member!!
Posted 04:08 PM, 06/30/2009
still_independent
Vandy: even if they are "handicapped” for comparison with the private sector, they would be in the 6 to 8 percent range" - this still puts them below private, and that's with profit excluded. Again, they game it as much as possible and still can't even get it even. And 6% isn't very different from 5.2%. Also, the "raising capital" argument is a specious one, as (to date), Medicaire runs a surplus - although this will change relatively soon.
Posted 04:04 PM, 06/30/2009
Vandy
"In other words, JUDICIAL ACTIVISM." Um, judicial activism isn't exemplified by a higher court wiping out a lower court's previous, flawed logic (i.e., removing the Bushey precedent that, you must admit, was activism defined).
Posted 04:01 PM, 06/30/2009
Vandy
"actually 8.9% versus 5.2%, over 50% higher" I'm not sure you're reading that correctly, Still. The authors claim that the 5.2% still understates the true expenses for Medicare, especially accounting for the invisible cost of capital, etc.: "This study, based in part on a technical paper by Mark Litow of Milliman, Inc., finds that Medicare’s actual administrative costs are 5.2 percent, when the hidden costs are included. We also raise an important, although heretofore unrecognized, issue that gives Medicare an inherent advantage on administrative costs. Because of the higher cost per beneficiary, Medicare administrative costs appear lower than they really are. If the numbers were adequately “handicapped” for comparison with the private sector, they would be in the 6 to 8 percent range. Finally, like the private sector, Medicare also has to obtain funds to pay claims. But the cost of raising that money, or borrowing it if the government doesn’t collect it from taxpayers, is excluded from Medicare administrative cost calculations. While we don’t in this paper draw any conclusions about what we shall call the “cost of capital” and its impact on Medicare’s administrative costs, we do want to highlight that those costs exist and that taxpayers, both today and in the future, must bear those costs." As for this, Still: "Medicare can't detect fraud because they handle more claims," the authors don't say Medicare can't "because" they handle more claims, they say they don't because the govt. set it up solely to detect massive fraud. "Medicare is paying claims it shouldn’t—and, ironically, making its administrative cost ratio look more favorable!" "Every state imposes a tax on premiums collected, usually running in the 1 to 3 percent range...it highlights that government is taxing it and imposing regulations and unfunded mandates (that is, it tells the private sector to do something, but doesn’t reimburse its costs)."
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Posted 03:40 PM, 06/30/2009
still_independent
Vandy: sorry, assumed you were responding to me responding to CD... In any case, what Ginsburg actually wrote (in a footnote) was "Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party" ... She's basically saying that the case should be reheard, but if the SC insists on this being the final ruling, then it should be for the town.... All this was predicated on CD's statement "... she issued a mere order on the decision without writing an opinion. Both the majority and Bader-Ginburg's dissent noted that this was very troublesome" - this never occurred.
Posted 03:29 PM, 06/30/2009
still_independent
Vandy: I read the paper you linked. It's interesting, and raises some valid philisophical points (as in "Are lower administrative costs actually better?"). I have one fundamental issue with it, though. They tried their best to include costs that aren't normally figured into Medicaire's costs - like estimates on congressional staff's salaries for the time the staffs were working on Medicaire legislation. They try their best to exclude private insurer's expenses - they exclude things like premiums and profit. They argue that since Medicaire doesn't make a profit, they'll discard it for the sake of an "apples to apples" comparison. They miss the point that private insurers DO make a profit - that's one of the arguments for gov't provided health insurance. They also try and argue to look at administrative costs per person rather than as a percentage of claims paid, assuming (without basis) that costs are fixed per person; yet one of their other arguments is that Medicaire can't detect fraud because they handle more claims (which would drive up costs, counteracting the prior argument). Anyway, even after all the gaming, the best they could do is that for the LARGEST private groups (for economy of scale), with profit and commissions EXCLUDED, and with the "true" Medicaire costs INCLUDED, the private insurers' administrative costs "approached" Medicaire's (actually 8.9% versus 5.2%, over 50% higher). If you choose to include profit and commissions (which exist in the real world), then they are 16.9% versus 5.2%, which is triple. If the best an insurance industry advocacy group (CAHI) can come up with is triple, then they're in pretty bad shape.
Posted 03:21 PM, 06/30/2009
Frito1
MAD MOJO - Can you please finish copying and pasting that fascinating article about Sarah Palin? It is so interesting and such a surprise that a Journalist would write a hit piece on her! I guess the Journalist forgot the capmapign's over. It is amusing that these folks can't wean themselves off of writing about Politicians, that are now totally irrelevant in today's Washington. I guess you (and they) need to hold onto your Bogeymen (Limbaugh, Gingrich, Palin, Cheney, Fox News) as long as you can to avert yourself from the reality that Democrats hold ALL OF THE POWER now and there really is nowhere else to go with your blame like the good old days...you know...Bush Sucks..remember?
Posted 03:14 PM, 06/30/2009
Vandy
Still, the only critical comments I found were from Alito and (surprisingly) Alito: "“Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment,” Alito wrote. “The Court of Appeals then summarily affirmed that decision.” “The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law. And that is what, until today’s decision, has been denied them.” -- The lower courts, including Sotomayor’s 2nd Circuit Court of Appeals, were wrong to focus on the city’s intent, Ginsburg said, agreeing with the majority that the issue was one of facts, not feelings. “The lower courts focused on respondents’ “intent” rather than on whether respondents in fact had good cause to act,” Ginsburg wrote, adding “a remand for fresh consideration would be in order.”
Posted 03:07 PM, 06/30/2009
Vandy
"at no point (that I could find) did the majority ruling or the dissent criticize the 2nd court of appeals." When did I claim that the SCOTUS made such a criticism?
Posted 03:02 PM, 06/30/2009
still_independent
Vandy: even the Supreme Court didn't address the underlying constitutional issues in their decision - it's mentioned in the majority ruling, and Scalia makes a point of explicitly stating this in his concurrence... In any case, at no point (that I could find) did the majority ruling or the dissent criticize the 2nd court of appeals.
Posted 02:32 PM, 06/30/2009
Vandy
"it is considered a BINDING PRECEDENT in the Second Circuit," Well, gosh, why did they even hear the case instead of just tossing it out?? "In his dissent from denial of rehearing en banc in Ricci, Judge Cabranes (joined by five other judges) states that the case “raises important questions of first impression in our Circuit—and indeed, in the nation—regarding the application of the Fourteenth Amendment’s Equal Protection Clause and Title VII’s prohibition on discriminatory employment practices.” He calls the district court’s opinion (which Sotomayor and her panel colleagues adopted wholesale) “path-breaking” and the questions on appeal “indisputably complex and far from well-settled.” He declares that the “core issue presented by this case—the scope of a municipal employer’s authority to disregard examination results based solely on the race of the successful applicants—is not addressed by any precedent of the Supreme Court or our Circuit.” http://bench.nationalreview.com/post/?q=MDM0YWM4ZDI1NGIxNTc2MzhiMmRmZDcyNDFiZWI0YmE=
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Posted 02:22 PM, 06/30/2009
Vandy
"Vandy: where did DP mention a filibuster in this blog entry?" Hi Still. My reference was to his repeated hypothesizing about a filibuster in previous blogs, e.g., would the Republicans dare filibuster...: "Saying No to Sonia" (May 26), "In the End, She Ascends" (May 28), "Gender Justice" (May 5). He rightfully casts dispersions in each instance on the possibility, yet he never criticizes then Senator Obama for actually voting for a filibuster for a judge whom he explicitly admitted was qualified. As an aside, I'm not sure if you saw my final response to your last Medicare post, but if not, I thought this study, from the same source you cited, would be of interest: http://www.cahi.org/cahi_contents/resources/pdf/CAHI_Medicare_Admin_Final_Publication.pdf
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Posted 02:00 PM, 06/30/2009
still_independent
Vandy: where did DP mention a filibuster in this blog entry?
Posted 01:57 PM, 06/30/2009
still_independent
CD75: and where, exactly, did the court find the 2nd court of appeals actions troubling? The only mentions in the majority opinion are "After full briefing and argument by the parties, the Court of Appeals affirmed in a one-paragraph, unpub-lished summary order; it later withdrew that order, issu-ing in its place a nearly identical, one-paragraph per curiam opinion adopting the District Court’s reasoning.530 F. 3d 87 (CA2 2008). Three days later, the Court of Appeals voted 7 to 6 to deny rehearing en banc, over writ-ten dissents by Chief Judge Jacobs and Judge Cabranes.530 F. 3d 88. This action presents two provisions of Title VII to beinterpreted and reconciled, with few, if any, precedents in the courts of appeals discussing the issue". That's it. A factual stating of what occurred. Where exactly did the majority criticize them? In the dissent, they aren't even mentioned, except in the context of the district court following second court precedent.... I ask again, where in either the majority ruling or in the dissent, did "... she issued a mere order on the decision without writing an opinion. Both the majority and Bader-Ginburg's dissent noted that this was very troublesome" ?
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Posted 12:57 PM, 06/30/2009
chasing history
To do otherwise would mean ignoring the law in order to benefit a sympathetic plaintiff — exactly the kind of “judicial activism” that the "conservatives" on the supreme court are now practicing.....my thought on this issue was that there was no evidence that the test was biased, so how could the city of NH throw out the results?
Posted 12:49 PM, 06/30/2009
Frito1
Is Dick Polman assigned to the Republican desk at the Inquirer? If so, who is assigned to write about the Democrats? I thought Dick would find it more interesting to write about the Party that holds all the power and relevance in Washington. Guess thats not the case. No fun for Dick to "speak truth to power" anymore I guess.
Posted 12:48 PM, 06/30/2009
Yersinia Pestis
CD - you are right if you mean his name fits because he gets "mad" about the village idiot dumping mounds of bubbling, putrescent, fact-free, hate-filled rhetorical ex*crement here in the blog comments, and has the "mojo" to go find the actual relevant facts of the actual relevant case to Ricci and post them here to enlighten us. Thanks so much for your always valuable contributions here.
Posted 12:37 PM, 06/30/2009
CD75
Mad Mojo: Your name fits you perfectly.
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Posted 12:14 PM, 06/30/2009
jmc
The ultimate political reality is that Sotomayor is going to be confirmed, Republicans know this. And they know that her confirmation does not amount to anything regarding the makeup of the court. Yet DP goes through a litany of paragraphs defending Sotomayor against Republicans who have obviously moved on. Talk about "meaningless as wind in dry grass".
Posted 12:06 PM, 06/30/2009
CD75
Dick, for being a self-proclaimed "politcal journalist" you seem to never see the forest for the trees. It is most likely because of your partisan hate. News flash Dick: the repubs are not trying to take down Sotomayer. Thier lone goal is to use the hearings as an oppurtunity to paint The Messiah as an out-of-control liberal and to attach Obama with the radical commie that he is. The hearings have nothing to do with Sotomayer. They have everything to do with 2010 and 2012. Duh.
Posted 12:04 PM, 06/30/2009
Phillyrussian7
Vandy and CD5, both of you issued very intelligent and thoughtful comments that added something new to the discussion. Please don't despair, as this most likely went above Mr. Polman's head.
Posted 11:59 AM, 06/30/2009
CD75
More troubling then the actual ruling by Sotomayer was the fact that she issued a mere order on the decision without writing an opinion. Both the majority and Bader-Ginburg's dissent noted that this was very troublesome. It shows a lack of judicial courage and raises the question that she put her polical/judical ambitions above writing an opinion that would have given fodder to the conservatives. If justice is blind, it appears that Sotomayer blindly follows her ambitiobn over her duty as a federal appellate judge to write an opinion. Of course, wanna be lawyer Dick does not understand such things. He is just a leftist journalist with an agenda.
Posted 11:35 AM, 06/30/2009
Vandy
Again, Dick, there was never going to be a filibuster. That's the domain of the Democrats, and frankly, I'd appreciate it if you would even tacitly acknowledge that then-Senator Obama was one of the senators who voted for a filibuster against Alito, purely on subjective grounds. Elections do have consequences, and it's important for Sotomayor to be confirmed so that those who disagree with her activist stance understand that this is what you get when you elect a Democrat.
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About Dick Polman

Cited by the Columbia Journalism Review as one of the nation's top political reporters, and lauded by the ABC News political website as "one of the finest political journalists of his generation," Dick Polman is a national political columnist at the Philadelphia Inquirer. He is on the full-time faculty at the University of Pennsylvania, as "writer in residence." Dick has been a frequent guest on C-Span, MSNBC, CNN, NPR and the BBC. He covered the 1992, 1996, 2000, and 2004 presidential campaigns.

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