November 6, 2003
From the desk of Jane Galt:Are the Democrats effectively discriminating against minorities?
I took a lot of heat for this post, in which I suggested that Democrats were trying to keep Janice Brown and Miguel Estrada off the appellate bench in part because they are minorities whose qualifications would make them eligible for an appointment to the Supreme Court. Many critics argued that this couldn't be true because the Democrats had approved other minorities to the appellate bench, even though I specifically stated that my claim referred to minorities who had the potential to be Supreme Court justices, not merely minorities in general. Or they tried to disprove the silly claim that Democrats are racist, which is easy to disprove, but which is also irrelevant, because I never claimed they were. What I asked was, weren't the Democrats engaging in behavior for which they would prosecute a private sector entity?
Now Stuart Buck comes along with an elegant and informative post illustrating that indeed, if Senate Democrats are using race as a sort of a "minus factor" for conservative minorities, they are engaging in conduct illegal in the private sector:
Several critics have pointed out that Senate Democrats have approved the nominations of several other individuals who are racial minorities. The implication is that this refutes any suggestion of discrimination on the part of Senate Democrats. (Critics who made this point include Ted Barlow, Dwight Meredith, and Nathan Newman.)Posted by Jane Galt at November 6, 2003 10:58 AM | TrackBack | Technorati inbound linksBut if we are talking about the requirements of federal anti-discrimination law, the critics' point would be valid only if Estrada were raising either a "disparate impact" claim or a so-called "pattern or practice" claim. In some cases, the plaintiff attempts to prove a "pattern or practice" of discrimination by showing that the employer systematically hires fewer people of one race. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747 (1976). And in others, the plaintiff attempts to prove that a purportedly neutral employment requirement (e.g., requiring a high school degree) creates a disparate impact on a certain race. See, e.g., Griggs v. Duke Power Co., 401 US 424 (1971). In either type of case, the employer might respond with statistics showing that minorities are faring well.
But disparate impact and "pattern or practice" claims aren't the only types of discrimination claims. Any individual who thinks that he or she was treated differently on account of race can sue for that individual instance of discrimination. And in such lawsuits, the employer cannot get the case dismissed simply by pointing to other racial minorities who haven't been mistreated. See, e.g., Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir. 1982); Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025, 1032 (5th Cir. 1980) ("The district court found that HCCAA did not "discriminate generally on the basis of sex" because nearly half of its supervisors were women, women were on its Board of Directors, and one of the vacant Field Representatives positions had been held by a woman. Though these statistics may be some evidence of absence of discrimination, especially in a disparate impact case, they do not constitute an adequate basis for a finding of non-discrimination in a disparate treatment case involving a particular instance of failure to promote.").
And that's as it should be. There is no rule that an employer is innocent of racial discrimination unless it fired or refused to hire every single racial minority in sight. It's enough to show that discrimination was involved in the plaintiff's individual case. Otherwise, there would be no remedy in situations where the employer discriminated against one or a few individuals but not against everyone.
Let's take a closer look at what federal law actually says, and whether Estrada might have a discrimination case (that is, if Title VII applied to judicial nominations).
The most important Supreme Court case governing employment discrimination cases under Title VII is McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). It's a four-part test:
The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.
McDonnell Douglas, 411 U.S. at 802.Miguel Estrada could easily satisfy this test. First, he belongs to a racial minority. No question about that. Second, he applied and was eminently qualified for the position of judge on the D.C. Circuit. There is no serious question about Estrada's qualifications. Third, despite his outstanding qualifications, he was rejected. Fourth, the position remained open.
Estrada's case would also be vastly strengthened by the fact that the Senate (including Senate Democrats) overwhelmingly approved the nomination of John Roberts to the D.C. Circuit. Roberts' qualifications are strikingly similar to Estrada's -- a degree from Harvard Law School, a Supreme Court clerkship, a period of time at the Solicitor General's office, and extensive experience in private practice as a Supreme Court practitioner. This sort of evidence is used all the time in employment discrimination cases. If a black person wasn't hired but a white person with identical qualifications was hired, the case for discrimination is that much stronger.
Thus, Estrada could handily make out a prima facie case of employment discrimination.
. . .
So, Estrada would probably be able to demonstrate that the Democrats' proferred reasons were either pretextual or else were examples of discriminatory treatment, particularly given that the same reasons could have been (but weren't) used to block John Roberts.
And at that point, Estrada might be able to win an employment discrimination suit, just based on the above facts alone. It wouldn't be a definite win, but current federal law does allow a verdict for the plaintiff where the employer's "legitimate" reasons are shown to be pretextual. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) ("Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.").
. . .
Thus we come to what everyone knows is the real reason that the Democrats blocked Miguel Estrada: Because they were afraid that he might be nominated to the Supreme Court. As Ted Kennedy said to his fellow Democrats, "The White House is almost telling us that they plan to nominate him to the Supreme Court. We can't repeat the mistake we made with [Supreme Court Justice] Clarence Thomas."
Now think about that for a minute. What "mistake" was that? The only thing Kennedy could have meant was the "mistake" of letting Thomas become a D.C. Circuit judge in the first place. With Thomas in that position, Bush I was able to nominate Thomas to the Supreme Court. And despite the best efforts of Anita Hill and every Democratic special interest group under the sun, several Democratic Senators found it impossible to avoid voting for Thomas simply because they didn't want to be seen voting against an African-American nominee to the Court. Their "mistake," in other words, was letting a conservative racial minority ever get to the point where he could be plausibly nominated to the Supreme Court.
The objection will be raised: Kennedy merely meant that the mistake was in letting any conservative get to the D.C. Circuit. But note that he didn't refer to the "mistake we made with Antonin Scalia," even though Scalia is equally conservative and was successfully nominated to the Supreme Court after serving on the D.C. Circuit. The fact that Kennedy referred only to Thomas, and not Scalia, is evidence that he was (even if subconsciously) referring to what he views as a bad experience with a conservative minority.
Another objection will be raised: How can anyone seriously suggest that Democrats are guilty of discriminating against minorities? Well, this is a valid objection only if "discrimination" under federal law required some showing of personal animosity. But there is no such requirement. In order to win an employment discrimination case, you don't have to show that the employer was personally full of hatred, bigotry, meanness, spite, or any other feeling of ill-will towards minorities (although such a showing usually helps!). All you have to show is that race or ethnicity was a "motivating factor" in the hiring or firing decision. So if an employer said, "I love black people with all my heart, but unfortunately my customers might not want another black employee here," the employer can be held guilty of racial discrimination.
. . .
So if the employer takes race into account at all, even with no feelings of ill-will towards the racial minority, he can be held guilty of employment discrimination. Likewise, if the Democrats took Estrada's race into account in deciding that they should oppose him and not Roberts, then they are guilty of the sort of conduct that might be held to violate Title VII, even if their main motive was to take preemptive action against conservative potential nominees to the Supreme Court.
1) The "mistake" made with Clarence Thomas was that he was not qualified for the job...period. He's the only nominee up until that point (and I think still) who did not get the approval of the ABA. And his record shows this to be true. He has asked...to my knowledge...ONE question the entire time he has been on the bench. He has authoried fewer opinions than anyone currently sitting on the court. If anything, Clarence Thomas got to his position BECAUSE of his color, not regardless of it. Conversely, while I disagree with most everything Scalia stands for he is a very powerful figure on the bench. He askes good questions, he writes informed opinions. It has nothing to do with color. I think he shows a lack of understand, compassion and is just generally wrong on several things, but at least he has convictions and opinions where C.T. seems only to follow Scalia's lead. That's not what I think our premier jurists should do.
2) To my recollection, Estrada removed himself from contention for the judgeship. Now I don't know the relevent labor law of these matters, but it would seem to me it would add an extra burden to Estrada's case to prove that throughout the confirmation process it had been made clear to him that there was NO POSSIBLE WAY he would get the job. Otherwise he just gave up because it was tough and, hey, C.T. never gave up because it was tough and look where he is now.
3) I also was under the understanding that Estrada was marginally qualified at best. I personally recall having see some statements made by him which I felt showed a lack of understanding on a variety of issues of substance and insight into his very closed mind. This is not what I want in a "well qualified" candidate.
4)I still find the headline to the post somewhat preposterous because really it should be "could the democrats be accused and/or found guilty of discriminatory practices in a very specific forum?" as opposed to your broad and, I feel, misleading headline.
5)In addition, while we don't have a Democrat in the W.H. right now, I doubt you would have addressed this issue were the tables turned. Obviously Estrada is not out on his butt because the democrats want to burn a cross on his lawn, he's out because they don't feel he is "qualified", partly for his political leanings.
By this same logic, If I buy a Beastie Boys album and not a Dr. Dre album, then my racist desire is what motivated it and not the fact that I think the Beastie Boys are better, more to my taste or, hey, I just don't like Dr. Dre very much. I like Will Smith and Outkast though. Doesn't matter. I deprived Dr. Dre of his job. He was qualified.
It's a dumb argument.
Kate, I haven't seen anyone actually make a credible argument that Estrada's unqualified. The argument that they have made is that he's conservative, and they don't like conservatives, which is not the same thing, no matter how hard liberals like Chuck Schumer scream that being against Roe is a radical extremist position (held by that right wing nut, Larry Tribe.) And the ABA's astonishing propensity for finding that conservatives are much, much less qualified than liberals makes me fairly unconcerned about their rating on Clarence Thomas.
Meg,
Again, to my knowledge, the ONLY person ever found unqualified who was EVER up for a supreme court post was Thomas. Ever. So the phrase, "the ABA's astonishing propensity for finding that conservatives are much, much less qualified than liberals." When? Once? I have to tell you, if you look at Thomas' background and the length of time he had on the bench before he was elevated to the high court, he was unqualified. Woefully so. I also would like to say Conservatives often (NOT always) show a lack of understanding of the law (see Partial Birth Abortion Ban which will be thrown out because it is almost identical to previous state legislation which was thrown out by the Supreme Court. Regardless of how you feel about this law, you've got to be an idiot to let a law through that can't possibly last.)
One of the main requirements for a jurist is to view the facts, apply the law and interperate appropriately in an objective fashion. If you think that, say, all Homosexuals are evil and are going to hell, can you really be all that impartial when an issue dealing with homosexuality comes in front of you? Probably not. Do you have the right to your opinion? Of course. Do I think you're qualified to be a judge? No way.
When will the people of Massachusetts stop repeating the mistake of re-electing the Hero of Chapaquiddick™ to the Senate?
In the 200-plus years of the Supreme Court, Thomas is the only unqualified justice? EVER? I find that extremely hard to believe.
When will the people of Massachusetts stop repeating the mistake of re-electing the Hero of Chapaquiddick™ to the Senate?
In the 200-plus years of the Supreme Court, Thomas is the only unqualified justice? EVER? I find that extremely hard to believe.
Kate,
"3) I also was under the understanding that Estrada was marginally qualified at best. I personally recall having see some statements made by him which I felt showed a lack of understanding on a variety of issues of substance and insight into his very closed mind. This is not what I want in a "well qualified" candidate."
What statements? What substantive issues? Until you can offer more than vague generalizations, I'll assume you're just one more spinning, partisan hack...
"He's the only nominee up until that point (and I think still) who did not get the approval of the ABA."
(from the testimony of Ronald Olson, the chairman of the ABA's Standing Committee on the Federal Judiciary at the time)
"At all turns, Mr. Chairman, we focused on three criteria: integrity, temperament, and professional competence. In conclusion, a substantial majority of the committee is of the view that Judge Thomas is qualified for appointment to the United States Supreme Court. The substantial majority concluded that Judge Thomas' integrity is above reproach, his temperament outstanding, and that he has demonstrated professional competence sufficient to meet the committee's qualified standard."
It helps to actually do the research rather than mouth NOW propaganda, Kate.
One can be against Roe and the partial birth abortion ban, and I think it's not unlikely that Scalia and Thomas will vote to overturn the ban, which, any reasonable scholar from either side should agree, is well outside the purview of the Federal government's powers. I will join you in excoriating them if they do not. (Though I'll point out that you do not have to be an idiot to pass such a law, if you are in congress, even knowing that it will be overturned; on the contrary, you are at least smart enough to count the votes thereby gained).
But the majory of the "Roe is bad law but good policy so I'll tap dance as hard as my little toes can stand to defend it" lawyers and legal scholars won't have any right whatsoever to complain if they don't.
The goal of the PBA ban is to toss a sop to the pro-life lobby. If the SC overturns it, so much the better--that means more publicity for the congresscritters who voted for it, and another issue on which to pound the court for activism.
It's called "politics."
BTW, I would hardly judge the quality of a justice by the number of his questions or opinions. By that logic, every member of the Senate would be a WONDERFUL judge, given their propensity for producing vast quantities of hot air.
As someone who has practiced employment law (I've defended corporations from claims of discrimination) this was a no-brainer. The McDonnel-Douglas test was met the moment Schumer (IIRC?) asked whether Estrada was Hispanic enough.
"BTW, I would hardly judge the quality of a justice by the number of his questions or opinions."
As has been noted elsewhere, Thomas has views very similar to Scalia and usually votes with him, which fact has provoked countless snide prose from the media left (of course, they never minded when Thurgood Marshall voted with Bill Brennan equally often). I'd be willing to bet that if Thomas spoke, say, half as often as Scalia (who is a tireless questioner at oral argument), the same lefties sniping at Thomas for not speaking would be endlessly whining about "the extreme right" hogging time at oral argument that their own idols could be using.
Suppose there are two equally qualified candidates.
One candidate goes into his interview, willingly answers questions, establishes a repore with his interviewers, and express respect for them and for the position he is being hired for.
The second goes into his job interview displaying an attitude of contempt, arrogance, and noncooperation toward his interviewers. He refuses to answer questions, lies, and then refuses to state the truth after being caught in his lie, but tries to muddle through with evasions and half-truths. Even his sponsors express surprise at his attitude and decide that he will be unlikely to get the job.
When qualified white candidates like Bill Prior demonstrate the same arrogance, contempt, and intellectual dishonesty in their job interviews as this second candidate, they also alienate their interviewers and provoke the same hostility.
It seems like one has to wear thick, dark blinkers to make the affirmative action angle work. You have to ignore Estrada's very real sins that set him apart from most--but certainly not all--of Bush's nominees. Bush and Estrada could have won this battle, but Estrada shot himself in the foot. Perhaps if he'd been a wiser, more seasoned individual--or didn't have a horrendous record to cover up--he might have been able to glide by the Democratic committee like so many other conservatives. Perhaps he would have made a better judge, too.
Now, do you really think that racial discrimination is what made the difference between the two "equally qualified" candidates? Would *you* hire a candidate who lied to you and treated you with contempt during an interview--and would you support such a candidate if he sued?
Two points:
1) Regardless of what you think the motivation of the Dems in opposing Mr. Estrada and Ms. Brown, reference to the McDonnell-Douglas test is pretty unhelpful. That doesn't prove anything. It is merely a judicially created means to allow plaintiffs to put their employment discrimination case to a jury. It was created because discrimination cases, even morese than other legal claims, are particularly difficult to prove once employers learned not to make publicly rascist statements. Here, we have lots of statements by everyone and other evidence. Discussion of the prima facie evidence standard is meaningless. It is also weird to move from evidence of Sen. Kennedy's intent to evidence of Democratic senators intent. Let's assume that Sen. Kennedy opposes these nominations in part because of race. Why isn't it possibly true that every other democratic senator votes along with him in order to get help with their own bills, fundraising, whatever? That may not be noble, but it isn't rascist, and it is politics.
2) Does anyone really doubt that Pres. Bush has, at least in part, relied on race in making his nomination selections? I have no particular beef with Justice Brown, but I can think of lots of more accomplished state court jurists off the top of my head. Same for Mr. Estrada. Of course race plays a part in the president's judicial nominations -- so do other factors. So, why are we all riled up about the consideration of race by senate democrats and not by the President?
I don't know, apu -- why can state universities use race as a plus factor, while professors can't use it as a "minus factor" in deciding who gets into their classes?
Britain33, the Dems were gunning for Estrada from minute one. It's ludicrous to claim that their objections were somehow based on his testimony, when they'd made it crystal clear they were going to obstruct him before he'd said a word.
apu... the point is that under current discrimination law, trying to get along with racist co-workers or customers by disfavoring a minority is actionable
now i don't think anti-discrimination law is legitimate (free people, free markets, free contracts), just as i don't agree with tenant protection laws, and a wide varierty of other laws that attempt to control people's social interactions (there should be no laws on this... no jim crow, but no anti-jim crow either)
however, democrats (especially these democrats) specifically advocate for anti-discrimination and affirmative action laws. Additionally, they seem to be violating the rules that they themselves enact (can you say bill clinton? and harrassment law? fun!). It's one thing to be a hypocrite (not that bad, but not great) and another to be a hypocrite who is above the laws that one promulgates and enforces. That would be the position of the Senate Dems.
the fact is that discrimination law is not fair and is overly judgemental. Dems and leftists only object when it is pointed out that their behaviour, rather than taht of evil capitalists, violates kafkaesque rules.
Reps and reactionaries usually hate discrimination law, but seem to relish making accusations of discrimination at the slightest perceived affront to a conservative member of a minority group. It's one thing to be a hypocrite and another to be a hypocrite who desperately tries to invoke the very laws one usually derides.
Au contraire, Wallster, I can make a pretty coherent argument that voters should punish their representatives for racial discrimination, even if freedom of association should allow private individuals to engage in it, because we rightly hold our lawmakers to the highest standards. I can also make a pretty coherent argument that the dems are screaming hypocrites. How do you justify allowing your representatives should be allowed to engage in discrimination that's illegal in the private sector?
"Miguel Estrada could easily satisfy this test. First, he belongs to a racial minority. No question about that. Second, he applied and was eminently qualified for the position of judge on the D.C. Circuit. There is no serious question about Estrada's qualifications. Third, despite his outstanding qualifications, he was rejected. Fourth, the position remained open. "
WRONG WRONG WRONG
'Qualified' in this case also means to win approval by the Senate. It's right there in the job description (see US Constitution, must be confirmed by Senate).
Your brief in support of a discrimination claim is interesting but I think it answers your original question:
Should Dems (& the Senate) be held to the standard set for private business by discrimination law?
The answer is clearly no. As I shown, game theory would suggest that Bush would use every minority appointment to advance his ideology. The application of this principle would basically mean the Senate could only oppose white nominees...giving the President a blank check.
Jane's argument began with a nice rhetorical flair, "shouldn't the Democrats practice what they force on the private sector". In reality we now see why this is not the case. Judicial appointments are not the private sector.
That being the case, there's one dynamite argument that blows away Jane's case, would Dems reject a minority appointment they perceived as:
1. Being groomed for the S.C.
2. But was moderate in their eyes.
They probably wouldn't. Here again they are probably 'filling in the blanks' on candidates with limited records by assuming them to really be very conservative. While Thomas was black, what Jane forgets is that unlike Bork Thomas's paper trail was limited...the lesson Kenneday may have took from Thomas wasn't beware of black nominees but beware of quiet nominees. Game theory suggests that this would be a good strategy.
Jane, of course the Democrats were gunning for Estrada--they were gunning for at least a dozen high-profile candidates in '02. Each one of these candidates stuck out as a potential rallying point for Democrats because of a particularly glaring statement or ruling in their background on important issues.
What happened? The Democrats chose their battles. Some of these conservatives were filibustered, like Priscilla Owen, Charles Pickering, and Estrada. Owen had Alberto Gonzales's quote; Pickering had cross-burning; Estrada had a completely invisible record. But do you remember the trial balloons floated about Tymkovich in Colorado and Deborah Cook in Ohio? Interest groups organized against them (gay groups for Tymkovich, disabled and workers' advocates for Cook), there were petitions, some grandstanding in the Senate, but then the Democrats chose to let them pass.
If you were on MoveOn's mailing list, you'd have known about these failed filibuster cases.
Do you remember the sentiments in the press before Estrada's hearing? It was assumed that Democrats wouldn't dare filibuster Estrada precisely because he was Hispanic and because the argument against his record was a negative. He didn't have a Bork-type case in his background, he just had secrets and associates. That was why he was so dangerous. Democrats were expecting a tough fight but a probable loss.
But his behavior in the weeks leading to the hearing, and in the hearing itself, was what set him apart from Deborah Cook and Tim Tymkovich. It pissed off the Democrats and shook up the Republicans. He grabbed the target and put it right on his back.
If you're going to construct an analogy about discrimination, you can't disregard the very real events that set some nominees apart from others. Estrada screwed up his interview. Senate votes and the tone of the debate shifted past the tipping point.
Jane, everyone does the Kabuki ritual of "they're not qualified" to cover up partisan political disagreements. The real reason is, yes, we think they're too conservative.
I think if you want to argue that "Democrats are using minority status as a negative factor in approving potential Supreme Court justices", you need to do the following:
(Weak form) Find a single potential Supreme Court justice who's as conservative as Estrada or Brown, who is white, who was not opposed in a similar fashion/at a similar level of intensity by Democrats.
(Strong form) Show a statistical pattern of discrimination, not just for a single instance.
I haven't seen either bit of evidence, just flat accusations.
Jason: (Weak form) Find a single potential Supreme Court justice who's as conservative as Estrada or Brown, who is white, who was not opposed in a similar fashion/at a similar level of intensity by Democrats.
I already named one: John Roberts, who was confirmed to the D.C. Circuit without incident, and who is, as far as the public record reveals, as conservative as Estrada.
Jason: (Strong form) Show a statistical pattern of discrimination, not just for a single instance.
You don't have to show a statistical pattern to win a discrimination claim under federal law.
Boonton: 'Qualified' in this case also means to win approval by the Senate. It's right there in the job description (see US Constitution, must be confirmed by Senate).
Well, that's a nice way of trying to define the problem out of existence. I wonder if it would work for a private employer: "No, the Hispanic applicant wasn't 'qualified,' because I define the word 'qualified' to apply only to people whom I accept as employees. Since I rejected the Hispanic applicant, he therefore wasn't 'qualified.'"
Perhaps but that sword cuts both ways, judicial appointments are not Civil Service jobs that you take a multiple choice test for. The Senate has a hand in accepting or rejecting a candidate so qualified must have some meaning beyond simply asking if the guy finished law school. You can't simply say he was qualified if he was politically unacceptable to the Senate.
Boonton:
> Should Dems (& the Senate) be held to the
> standard set for private business by
> discrimination law?
OK, it's certainly a rhetorical question only, isn't it? Clearly, and shamefully, Congress in general has no intention of having to live up to the burdens it imposes on mere citizens.
"Clearly, and shamefully, Congress in general has no intention of having to live up to the burdens it imposes on mere citizens"
Whether it has the right to do that, is another question altogether. I can't think of how a case involving this principle would come before the Supreme Court, so perhaps someone more knowledgable about this kind of Constitutional questions that this policy raises.
The Constitutional role of the Senate in regards to federal judges, AFAIK , hasn't been described as more like a hiring interview with the Senate Committee serving the role of the interviewer from HR before today, so there's a few points for originality.
Also, jobs with some of the perks that this particular job has, (lifetime employment, sans the employee getting caught doing something really stupid and dumb and has to be thrown out immediately{impeachment}clause) have to be looked at in a different way than the regular 'meritocracy' approach that governs the everyday business world.
The elephant in the room here is the fact that the Republicans, as the majority party in Congress after 1994, blocked a lot more appointments by Clinton. Perhaps if this ideal of a "job interview" can be made a bit more retroactive, then we could see Mr. HR Committee member Greasy John Ashcroft telling others that a candidate for a position was "objectively pro-criminal".
I think that the Democrats have more to gain by opposing a few judges here and their, given that the rules of filibuster dictate that they must pick and choose their battles until at least Jan. of 2005.
The race card is being raised by the Bush Administration in a totally bogus manner.
Do you really think that a Caucasian-type candidate would get a lesser ride from today's Dems in the Senate?
I'll even grant you that the same was probably operational post-1994 in the Senate, that if Clinton hadn't been emphasized diversity(or pandered to different interest groups) and made all his picks as white males with the same political views as his minority candidates he did nominate, the Reps would've opposed
them all just as vigorously as they did all of the 57 people who were nominated and were not confirmed. They would've been fools not to, so I don't think that saying so-and-so played the race card serves either side now.
Grasshopper, let this be a lesson to you.
When the Repubs could, they blocked many nominations by Clinton, as they knew the noise generated by Whitewater-Rose Law Firm
-Monica-etc. would drown out these doings, and so escape detection by the average voter. If they had to say why they didn't confirm someone in particular, you had the standard explaination that Clinton was appointing someone who was really awful(per Ashcroft's statement, above) and lead the world into single-sex bathrooms, a copy of Heather Has Two Mommies in every school library, and would rule in favor of allowing the formation of all-Gay battalions in our military services.
Sun-tzu said that winning didn't consist of fighting a battle.
The Demos have come out against 4 candiates. Yet the stubborness of the efforts to keep them from confirmation has been in the news for a while, especially since Estrada decided that he wouldn't be confirmed no matter what. He withdrew so as to spare the Aministration from waging a effort on his behalf, an effort that he knew was unwinnable.
The fact that other nominations have been filibusted successfully makes the Repubs look like they can't get things done, which is not a good thing.
This entry is absolutely correct in pointing out that the disparate treatment of Estrada is unequal and discriminatory. The problem is that the law doesn't apply to Congress.
Sorry, Jane - you're wrong on both counts. Holding public officials to a higher standard is fine (though certainly not a reality), however the fact remains that the Dems did not stop Estrada because he's hispanic. They did it because he's too conservative for their tastes. You've put forward no evidence that the Estrada affair was racially motivated, in fact others in this thread and the other have made your argument seem silly.
However, you cling to your argument, as your libertarian heart is delighted to level an unfair charge at a political opponent, as payback for unfair discrimination charges that you have seen leveled at those in the private sector. You accuse others of hypocrisy, but in doing so, you are hypocritical yourself.
Your proper argument should have been, "Are the Democrats discriminating against minorities? Of course not. And neither were x, y, and z when they were accused by Dems of discrimination."
Qualification or non-qualification for the Supreme Court
should be driven by whether or not the candidate advocates
the Constitution of the United States and its amendments.
Remarkably we have a number of justices sitting on the
bench now who are hostile to the constitution. Obviously
almost every candidate is going to claim to support it,
but equally obvious that simply isn't true.
I think it would be helpful if at least some members of
congress used their time to focus on these issues, to
ask specific questions of what the candidates think the
constitution means, to inquire into past decisions of
the candidate that undermined the constitution and of
course to vote against or for people entirely on this basis.
The elephant in the room here is the fact that the Republicans, as the majority party in Congress after 1994, blocked a lot more appointments by Clinton.
That's hardly an "elephant in the room", considering that point is brought up in every blog discussion of judicial filibustering I've read.
For Stuart Buck,
If EEO law applied to gov't elected officials, wouldn't sending away volunteer/unpaid/interns who later sought paying jobs -- while
arranging a well-paid "GS-9" salaried job for
intern who offers the boss a b.j. -- constitute sexual discrimination? I mean, leaving perjury clear out of it, and acknowledging that the act seemed perfectly consensual between the primary parties. If a THIRD party had ever been passed over for a job at the -- say -- Pentagon, wouldn't the decision be actionable?
Just a notion about the problems of making one "class" of citizens exempt from the law of the land ...
Two examples of Janice Rogers Brown's thinking
that caught my eye:
Quote:
Consider her dissent last year in San Remo Hotel v.
San Francisco, a case that upheld the heavy fee that
San Francisco exacts from residential hotels if they
seek permission to convert to tourist use. Brown
expressed concern that owners of these small hotels
were "a relatively powerless group" who had little
influence with the political authorities. The city
had simply declared that either they would continue
serving a transient population or pay into a fund
for the homeless, if they insist on becoming hotels
for tourists and business people. As Brown saw it,
singling out these small hotels for this social-welfare
duty amounts to an unconstitutional taking of private
property for public use. The Fifth Amendment, she
observed, prohibits government from forcing "some
people alone to bear public burdens which, in all
fairness and justice, should be borne by the public
as a whole."
[and]
Last year, in a case involving some of the most
extreme police tactics ever sanctioned by the state's
Supreme Court, Justice Brown's dissent went squarely
to the issue of racial justice - displaying a skepticism
of government power sets her apart from conventional
conservative jurists. People v. McKay involved a police
officer who pulled over a bicyclist who was riding
against traffic. When the rider failed to produce
a driver's license or other identification, the officer
arrested him and searched him. Justice Brown noted
that it is not illegal to ride a bicycle without
identification, and riding the wrong way on a bike
is "such a minor offense that it hardly seems worth
the officer's time to issue a citation." The Court's
decision upholding the arrest and search, Brown
concluded, stretched the Fourth Amendment's protections
to the breaking point. "If full custodial arrest is
authorized for trivial offenses, the power to search
should be constrained," she wrote.
(both from http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=10636)
"OK, it's certainly a rhetorical question only, isn't it? Clearly, and shamefully, Congress in general has no intention of having to live up to the burdens it imposes on mere citizens."
Actually it isn't a rhetorical question. The standards that are proper for the private sector should not be transposed onto Constitutional offices. Why? Because anyone who isn't brain dead can see the two sectors are different.
For example, IBM may hire Estrada to be head of their legal counsel. IBM would have the right to tell Estrada what they want to do and he would have to follow their instructions as any other employee would.
Does Congress 'hire' Estrada? Will it instruct Estrada as to how they want cases decided? NO! Estrada, if confirmed, would have been a free actor for life. If Republicans think Congress should hold itself to the standards of the private sector then it is only fair that appointees hold themselves to the same standards which means following the instructions of their 'employers' rather than exercising their own power.
Of course this is entirely at odds with the principles of the US Constitutional system of government but if we want to embrace a feel good proposition like 'what's good for the private secotr is good for Congress'...then go ahead!
Sorry, Jane - you're wrong on both counts. Holding public officials to a higher standard is fine (though certainly not a reality), however the fact remains that the Dems did not stop Estrada because he's hispanic. They did it because he's too conservative for their tastes.
I'm with you up to here -- not necessarily in agreement, but this opinion is defensible.
You've put forward no evidence that the Estrada affair was racially motivated, in fact others in this thread and the other have made your argument seem silly.
This is less defensible. Did you even read the posts in this thread, and the previous thread, that conflicted with your preferred point of view? Something like "weak evidence, in my opinion now refuted" would have been an honorable form of debate, but this "no evidence" suggests that someone has unwisely been abstaining from lithium.
However, you cling to your argument, as your libertarian heart is delighted to level an unfair charge at a political opponent, as payback for unfair discrimination charges that you have seen leveled at those in the private sector.
My goodness, now you're judging motives and being snide. How is this supposed to convince a skeptic (me, for example) that you have a better argument?
You accuse others of hypocrisy, but in doing so, you are hypocritical yourself.
Q.E.D.
Your proper argument should have been, "Are the Democrats discriminating against minorities? Of course not. And neither were x, y, and z when they were accused by Dems of discrimination."
And so now, having used improper debate arguments yourself, you proceed to educate Jane Galt on what her argument "should have been:" namely, your own preferred propaganda line. Again I ask: How is this supposed to convince the unconvinced that your argument has merit?
Here's a piece of unsolicited advice, which you are welcome to reject at your own peril: Shut up now, or take example from Britain33 and Boonton. I don't necessarily agree with them either, but I'm enjoying reading their arguments insomuch as they actually use arguments.
Sorry, Jane - you're wrong on both counts. Holding public officials to a higher standard is fine (though certainly not a reality), however the fact remains that the Dems did not stop Estrada because he's hispanic. They did it because he's too conservative for their tastes.
I'm with you up to here -- not necessarily in agreement, but this opinion is defensible.
You've put forward no evidence that the Estrada affair was racially motivated, in fact others in this thread and the other have made your argument seem silly.
This is less defensible. Did you even read the posts in this thread, and the previous thread, that conflicted with your preferred point of view? Something like "weak evidence, in my opinion now refuted" would have been an honorable form of debate, but this "no evidence" suggests that someone has unwisely been abstaining from lithium.
However, you cling to your argument, as your libertarian heart is delighted to level an unfair charge at a political opponent, as payback for unfair discrimination charges that you have seen leveled at those in the private sector.
My goodness, now you're judging motives and being snide. How is this supposed to convince a skeptic (me, for example) that you have a better argument?
You accuse others of hypocrisy, but in doing so, you are hypocritical yourself.
Q.E.D.
Your proper argument should have been, "Are the Democrats discriminating against minorities? Of course not. And neither were x, y, and z when they were accused by Dems of discrimination."
And so now, having used improper debate arguments yourself, you proceed to educate Jane Galt on what her argument "should have been:" namely, your own preferred propaganda line. Again I ask: How is this supposed to convince the unconvinced that your argument has merit?
Here's a piece of unsolicited advice, which you are welcome to reject at your own peril: Shut up now, or take example from Britain33 and Boonton. I don't necessarily agree with them either, but I'm enjoying reading their arguments insomuch as they actually use arguments.
Hmmmm . . . I see. So it will be all right, then, for Republican Senators in some future congress to blackball all of a Democratic President's nominees who might make it to the Supreme Court because they are likely to be liberal? Are you prepared to sign off on that one in advance?
Anonymouse -
'Something like "weak evidence, in my opinion now refuted" would have been an honorable form of debate'
Fine. You are correct, that's what I should have said.
'your own preferred propaganda line'
I have no propaganda line - I'm pointing out the error in another's propaganda.
Jane, assuming you were addressing me-
The Dems blackballing of Estrada may or may not have been legitimate. The same goes for Republican Senators future blackballing of a Democratic president's nominees.
I'm not defending the Senate, but rather arguing that this instance of blackballing is not discrimination.
That feels like a big shift in the argument. The prospect of a future congress blackballing liberals may suggest that it would be unwise for current congressional democrats to blackball conservatives, but it cannot possibly make it illegal (or even illegal-if-the-same-laws-applied) for them to do so.
"Hmmmm . . . I see. So it will be all right, then, for Republican Senators in some future congress to blackball all of a Democratic President's nominees who might make it to the Supreme Court because they are likely to be liberal? Are you prepared to sign off on that one in advance?"
At some point in the future? I remember when Clinton was deciding who his first S.C. nominee would be Republican Senators were quoted as saying Lawrence Tribe was off the table. Not because he wasn't 'qualified' (meaning knowledgeable in the law, experienced etc.) but because they considered him too liberal.
I really think, however, that the more relevant argument concerns the difference between the nature of these positions versus the nature of private sector positions. I noticed, Jane, that you glided over my point that while the private sector has hiring rules applied to it that are not applied to Congress's confirmation process, those hired in the private sector are very much under the thumb of their employer.
"That feels like a big shift in the argument. The prospect of a future congress blackballing liberals may suggest that it would be unwise for current congressional democrats to blackball conservatives, "
Game theory wise there may be something to be said for such a 'mutual cease fire' argument. But the odds are against it. Congress doens't turn over that often & the President at best can change party once every 4 years. If Democratic Senators were going to cut the Reps some slack on the theory that the Reps will cut them slack when a Dem takes the Oval Office again, they would be risking quite a bit. Among the down sides:
1. It will be a while before such a situation presents itself, will the Republicans bother to remember to return the favor?
2. Memory in DC is very fickle. Republicans stalled many Clinton nominees yet not even two years later a handful of rejected Bush nominations is being played up as a Constitutional crises. It would be very believable that Republicans would find some irrelevant difference between the Dems 'playing nice' and the nominees of a future Democratic President.
This second point can even be seen here a bit where some have tried to differentiate Dems blocking a Bush nominee by noting the technique used is the filibuster which the GOP apparantly didn't employ as a method. The effect is the same but such differnces can be spun as meaningful.
Game theory, IMO, would say don't play nice with the GOP today on the theory that they will return the favor years later when the tables are turned.
The debate over whether Congress should live by the standards it has imposed on private employers glosses over the real issue here - making a claim of discrimination when one doesn't exist, and using it to mask other issues.
As others have noted, the Democrats rejected the nomination of Estrada because he's too conservative, not because he is Hispanic. Fair enough. I agree that is why they rejected him. The charge of racism or bias is silly.
But I can't help but note that Democrats and others on their side of the ideological divide have been very happy to claim that a test, policy or rule is discriminatory, based solely on the outcome and its impact on minorities, even when that is not necessarily the case. Just like those conservatives who claim racism in the Democrats' opposition to certain Bush judicial nominees.
(Apparently some people have forgotten the debate over the use of SAT scores, and whether the test is "biased" against certain minorities solely because they receive lower scores than whites and Asians. Never mind whether the test is really biased or the authors were trying to discriminate against minorities - the results are all that matter. That sounds like the argument put forth by Jane at the beginning of this thread.)
A recent article in the Philadelphia papers highlighted the practice of insurance companies using credit scores to set rates for auto insurance. Turns out that a poor credit history is a good predictor of how likely a person is to file a claim. It is also tied to driving history (people with bad credit tend to have poorer driving records than those with good credit.) Unfortunately, in the Philadelphia region, a poor credit score is also tied to race. Certain minority groups have lower credit scores than whites and Asians. (This is true, by the way, even if the comparison groups have similar incomes.)
Which, according to the "consumer activist" quoted in the article, makes this a "racist" policy. I'm sure all of the posters disagreeing with Jane's theory are ready to tell this "consumer activist" that his theory is nonsense, and that insurance companies have very good reasons for using credit scores, and that the real problem is that minorities need to be more financially savvy. Of course, I'm not holding my breath...
Some policies will have a disperate impact on minorities even if the authors of those policies had no intention of such an outcome. Take our little game theory of nominations. Begin with some simple assumptions:
1. The party with the White House will want to appoint ideologues to the court to satisfy their base.
2. The party outside the White House will want moderates (or less ideological) nominess.
3. The public will view with favor the appointment of a minority.
This simplistic game in which no one really has an anti-minority agenda will result in no minorities ever getting to office! When the President nominates a minority, his incentive will be to make it an ideologue. Why? Because that will win him appoval of both his base and the general public, a home run for him. The opposition party will always be inclined to oppose the minority because they will not be moderates.
In real life this doesn't happen because there are many more variables at play. But I will agree with Jane in that minority appointments do seem to have drawn a lot of contraversy. This also includes Clinton (remember the Surgeon General, Ms. Elders?)
Ironically, if the public was more racist in this little model more minorities would make it onto the court. This would be because a minority appointment would have to be a moderate (to overcome the public's hostility) who would by definition be the preferred choice of the opposition party.
But I will agree with Jane in that minority appointments do seem to have drawn a lot of contraversy. This also includes Clinton (remember the Surgeon General, Ms. Elders?)
Would this be the same Ms. Elders that was hinting toward a pro-marijuana stance even while towing the surgeon general party line that smoking is bad for one's health, and suggested teaching masturbation as a safe-sex alternative (as if that needed to be taught, of all things)?
She was certainly controversial, but that was mostly her own doing.
Dishonest about the race issue as always I see.
For the record. Democrats are discriminating against extreme conservatives, or those who refuse to state their views on the theory that only extrement conservatives would feel the need to do so.
Race has nothing to do with it.
You may disagree with the democrat's assessment of who is an extreme conservative, but what you think doesn't matter since you would never vote democrat anway.
The dems have a right and a duty to their consituents (i.e. not you) to prevent Bush from packing the courts with incompetents or idealogical justices. And sole discretion for determing who is an ideolog lies with them.
"Hmmmm . . . I see. So it will be all right, then, for Republican Senators in some future congress to blackball all of a Democratic President's nominees who might make it to the Supreme Court because they are likely to be liberal? Are you prepared to sign off on that one in advance?"
Um, Jane. It can't have escaped your notice that The Republican Congress did exactly that during the majority of the Clinton administration.
So your question here, besides being rhetorical, is fundamentally dishonest. Your side already has an ideological litmus test and worse. A proven intention to understaff the Judiciary during Democratic administrations so that there aren an excess of posts to fill during Republican ones.
War over the Judiciary was declared by the Republicans during the Clinton administration,
and you damn well know it.
"Would this be the same Ms. Elders that ... suggested teaching masturbation as a safe-sex alternative (as if that needed to be taught, of all things)?"
Heh, it's always amusing to see how sometimes the more crazy among us are actually the more sensible...too sensible for public office. I remember Bush being interviewed during that flap and he said he objected to her statement because it didn't address teen pregnancy! 'Cuse me but if people don't have sex they won't get knocked up!
Anyway this does conform to my little model of cultural / game theory economics. If the public is generally supportive of minority appointments then those minorities that are appointed are likely to be more partisian than average (whether that is in the liberal or conservative direction).
Ironically, a hostile, more racist public would cause more moderate minorities to be appointed. I don't have any evidence of this but I think that minorities that were presented for public approval decades ago were more moderate in order to prove that they were 'normal' to the general public.
"She was certainly controversial, but that was mostly her own doing."
True, but look at Clinton's 'old male white' appointments. I just can't imagine Loyd Bentson advocating masturbation...but I suppose it would make an interesting alternative history tale...
Bones,
There is a reason it is called getting borked.
Jim English
Chicago, IL
Stuart, can you provide some links on John Robert's record? I can't find anything.
"Hmmmm . . . I see. So it will be all right, then, for Republican Senators in some future congress to blackball all of a Democratic President's nominees who might make it to the Supreme Court because they are likely to be liberal? Are you prepared to sign off on that one in advance?"
They can do whatever they want.
Ok, a bit more searching confirms that yes, Roberts is conservative.
This NRO article from 2002 talks like the Senate Democrats were holding up Robert's appointment for a while:
http://www.nationalreview.com/comment/comment-berkowitz042202.asp
As does this bit from Coulter:
http://www.townhall.com/columnists/anncoulter/ac20020510.shtml
So it looks like they were blocking lots of conservatives back then, but since the GOP got the Senate they gave up on all of them but Owen & Estrada. Question still remains: were the others are conservative as Owen & Estrada? Doesn't look like it.
This battle started when a Republican-controlled Congress declared war over President Clinton's judicial nominees?
Someone must not have been paying attention during the 1980s and early 1990s, when Democrats were battling Presidents Reagan and Bush over court appointments.
This battle started when a Republican-controlled Congress declared war over President Clinton's judicial nominees?
Someone must not have been paying attention during the 1980s and early 1990s, when Democrats were battling Presidents Reagan and Bush over court appointments.
This battle started when a Republican-controlled Congress declared war over President Clinton's judicial nominees?
Someone must not have been paying attention during the 1980s and early 1990s, when Democrats were battling Presidents Reagan and Bush over court appointments.
At some point in time it is up to the voters to put an end to this mess. We have two-sides saying "well you did it first". This sounds like two mob families in war over the biggest drug-dealing block in town.
At the top of this post the question was asked, "Would this treatment be permissible in the private sector?". The answer, at least today, is that any self-respecting company trying to even avoid that appearance if at all possible.
But that does not matter when you have two mobs in war over the biggest drug-dealing block in town, because at that point neither side is respectable.
Comments are Closed.