theRepublic said: Kasz216 said: theRepublic said: Sqrl said: theRepublic said: Sqrl said: The edit actually doesn't change my point really. I don't argue against the idea that your experiences shape your biases...that is a given. My contention is that selecting people for those biases as a way to "counteract" (or "balance" if you want to flower it up) other biases is insane because the members will inevitably change leaving the court biased.  By selecting the least biased people the majority will anchor the bias and prevent it from corrupting.  And like I said nullifying existing bias by adding bias is nullifying the nine justice dynamic and basically making it a 7 justice dynamic...and then a 5 and then 3...and eventually nullified to just 1...and whichever bias occupies the 1 odd seat basically runs the court. It's an absolutely shortsighted way to handle things. Least bias, most impartial means that you have a stable court where one or two justices allowing bias to get the better of them has no impact. In short the "counteractive" or "balance" bias approach produces a highly unstable court...the most impartial approach produces a stable court.  The only question once you realize that is whether you want stability in the rule of law...kind of an easy question for me. You missed my question.  (Damn my edits) I would call most of the court very partial judges right now, what makes you think this is going to change drastically in the future? To your point about trying to balance biases, I wouldn't do that, I would just have the court look more like America's demographic makeup.  That is the best you could really expect to do. I agree actually, I think the court is very politcized right now, but I'm not talking about what it is, but rather what it should be. To your last point: So you're advocating that the court have a bias that is representative of america and that their rulings should reflect the bias of america on average? I don't understand why you would advocate for the intentional introduction of bias...of any makeup.  Why not aim for the most impartial application of law we can manage as imperfect as we are?  Saying you will always have bias is one thing, but it doesn't mean that we have to accept bias as part of the decisions when we have a 9 judge dynamic that is specifically designed to handle this exact issue.  Not to mention, and I'm sure you'll hate me for pointing it out, but your argument is again assuming that everyone of a given race thinks alike.  If you take it as a given that people of one race don't all think alike then nominating based on race, by your own logic, is absolutely pointless.  Not everybody from one race is going to have the same views so the claim that somehow a 9 person sample is even remotely meaningful defies basic statistics. I actually just did a quick calculation and with a population of 300 million and a sample of 9, barring sampling error (which would exist), you have a margin of error of nearly 33.3% meaning your range of error is 66.6% (MOE is +/-). This means that by basic statistics if we select justices to represent america we will almost always end up not representing america. The entire idea is simply flawed.   First bold So you are actually talking about some sort of ideal world where people can actually know their own biases and selectively filter them out?  How do these impartial judges get selected?  It wouldn't happen the way judges are selected now.  How do you suggest the Constitution be amended to change the selection process? Second bold No it doesn't.  It assumes that people of different backgrounds have different life experience. I've already given you a good way Rath.  You simply take a look at their court rulings and see how much they rule against their own ideals.  It's an easy test to see who is willing to put the law above their own biases.   How do you know what their ideals are?

Most people volunteer such information both willingly and unwillingly throughought conversations....figuring out their ideals is fairly trivial.  The hard part is going through their cases and seeing how they've let it effect them.  It is a ton of work...but we already do it anyways only looking for bludgeons to beat the nominees up with.

theRepublic said: Kasz216 said: Not really... I go by words and actions... your words stated that... I didn't actually think you realized you said that... but a lot of people say and believe racist and sexist things without realizing they are saying such things.  Like when they say Men and Women are fundamentally different personality wise.  They aren't.  It's 90+% Socialization that creates the differences between men and women. I do believe that people can actually compartmentalize their work and what they believe.  I've seen it a lot.  People working against what they know is the best way to do something or refusing to do something they want... because they know the way they're supposed to do stuff. Also, I actually do believe in people as a whole as well... though I find that laws that "force" people to appeal to better "morals" tend to be counterintutive to the changing of people.  In sociology it's a well known fact that changes that were made by changes in attitude influenced by education are much more effective then legislation. Take a look at smoking.  More and more smoking is seen as gross and bad for you etc... when it used to be thought as cool. Unless of course... your under the legal smoking age. I was letting this go until now, but stop calling me racist.  You've been dancing around it without actually saysaying it but now you have. I'll quote what I said to sqrl: "No it doesn't.  It assumes that people of different backgrounds have different life experience." @bold That can be done with your known biases, but what about all the unknown biases?

@Racism discussion,

I don't actually think he is saying you're racist...I think taking it that way is kind a dramatization of what has been said.  The original comment was certainly racist and you've re-introduced it lightly throughout but I know I don't think that makes you a racist and I seriously doubt Kasz does either.

At the very least you've poorly explained and defended your position and left several people with the same impression.  The reasons why don't really matter anymore.  Now you have rephrased what you've said previously here (a good thing for helping to clarify) but this rephrasing doesn't support your position like the original statement did.  This new statement says "backgrounds" but all sorts of people from all sorts of races have all sorts of backgrounds...so there is no need to select a latino, black, white, female, Indian, etc.. judge since we are just looking for backgrounds we can ignore skin color and sex...right?

So the question is then what in the background are we looking for again?  I'm confused on that point to be completely honest.

The real problem I have with your position is fundamental and perhaps it is ill-concieved.  So let me make sure I'm not mistaken: Do you think that skin color and/or sex should be a factor in selecting judges at any level? 

@ the @bold,

9 Judge Dynamic - It only stands up to so much abuse so the less bias we allow onto the court the more solid a protection against bias it will be. 

Sotomayor... hrmm... I don't know too much except she was a member of "La Raza" and she said to a Duke Law School that the "Appellate Court was where policy is made"... I heard that and I don't know if it is in context or not, but she said that "I Know I am not supposed to say that but..."

Being a member of a pro-Open border policy and "racist" organization would be grounds for me to dismiss her... but... I don't know the full story yet.

NCLR is racist? WTF?

Let me guess, the NAACP is racist too?

Tyrannical said: akuma587 said: A lot of Supreme Court law is 100% court made. Its common law. Congress cannot change many of the Supreme Court's ruling on a wide variety (but not all) of issues or else they will violate separation of powers. We live under a common law judicial system. Unless a statute is involved (and the majority of the Supreme Court's cases do not involve statute), it doesn't matter what Congress has to say. You can't defer to Congress when Congress doesn't have the subject matter jurisdiction to speak on the issue. Congress can over rule any Federal court decision based on State Law, the State Constitution, or Federal law. I'm pretty sure all applicable common law has been codified at the federal level. I'm not so sure on the state level, but I'd be surprised if it hasn't been codified as well.

No, you are wrong.  And I don't even know what you mean by "the State Constitution."  Congress cannot contradict what the Supreme Court says the Constitution requires (although they can provide additional protections to people, they just can't go in the opposite direction, such as doing what the Constitution forbids).  Its a separation of powers issue.  The Supreme Court is the final interpreter of what the Constitution means, period.  That includes the vast majority of constitutional jurisprudence.  Think of "constitutional common law" as constitutional jurisprudence. This is why I know someone knows nothing about constitutional law when they say it is the Supreme Court's job to "interpret" the law.  They make law when it comes to the Constitution.  Plain and simple.  That's how it has been for the last 200 years.

On an unrelated note, there is a little bit of federal common law, but that is a different issue entirely.

Congress can modify federal common law (when it exists - it generally doesn't), but not precedents on legislation, regulations, rulings, or the constitution. The only way to get around those precedents is to hope for a new SC decision, or to alter the text in question. See Lily Ledbetter.

Congress can also limit the Supreme Court's appellate jurisdiction, even to the point of intervening in a case already in litigation. This is very rarely done, however.

akuma587 said: Tyrannical said: akuma587 said: A lot of Supreme Court law is 100% court made. Its common law. Congress cannot change many of the Supreme Court's ruling on a wide variety (but not all) of issues or else they will violate separation of powers. We live under a common law judicial system. Unless a statute is involved (and the majority of the Supreme Court's cases do not involve statute), it doesn't matter what Congress has to say. You can't defer to Congress when Congress doesn't have the subject matter jurisdiction to speak on the issue. Congress can over rule any Federal court decision based on State Law, the State Constitution, or Federal law. I'm pretty sure all applicable common law has been codified at the federal level. I'm not so sure on the state level, but I'd be surprised if it hasn't been codified as well. No, you are wrong.  And I don't even know what you mean by "the State Constitution."  Congress cannot contradict what the Supreme Court says the Constitution requires (although they can provide additional protections to people, they just can't go in the opposite direction, such as doing what the Constitution forbids).  Its a separation of powers issue.  The Supreme Court is the final interpreter of what the Constitution means, period.  That includes the vast majority of constitutional jurisprudence.  Think of "constitutional common law" as constitutional jurisprudence. This is why I know someone knows nothing about constitutional law when they say it is the Supreme Court's job to "interpret" the law.  They make law when it comes to the Constitution.  Plain and simple.  That's how it has been for the last 200 years. On an unrelated note, there is a little bit of federal common law, but that is a different issue entirely.

What do they teach you in law school? Congress can pass a new federal law which has supremacy over state law, state constitution, or a previous federal law. Congress has many times passed a new law because they did not like a federal court's interpretation of it. "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives", a fact many activist judges seem to over look.

Tyrannical said: akuma587 said: No, you are wrong.  And I don't even know what you mean by "the State Constitution."  Congress cannot contradict what the Supreme Court says the Constitution requires (although they can provide additional protections to people, they just can't go in the opposite direction, such as doing what the Constitution forbids).  Its a separation of powers issue.  The Supreme Court is the final interpreter of what the Constitution means, period.  That includes the vast majority of constitutional jurisprudence.  Think of "constitutional common law" as constitutional jurisprudence. This is why I know someone knows nothing about constitutional law when they say it is the Supreme Court's job to "interpret" the law.  They make law when it comes to the Constitution.  Plain and simple.  That's how it has been for the last 200 years. On an unrelated note, there is a little bit of federal common law, but that is a different issue entirely. What do they teach you in law school? Congress can pass a new federal law which has supremacy over state law, state constitution, or a previous federal law. Congress has many times passed a new law because they did not like a federal court's interpretation of it. "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives", a fact many activist judges seem to over look.

Once again Tyrannical, you are showing how little you actually know.  Unless the state law raises a constitutional issue, the Supreme Court cannot review that state law and overturn it.  The Supreme Court (and any federal court for that matter) is Erie-bound to do so and is bound by state in a context outside of reviewing its constitutionality or how it impacts certain federal laws (such as federal laws that may pre-empt the state laws).

Wikipedia explains the Erie doctrine pretty well:

"The Erie case involved a fundamental question of federalism and the jurisdiction of federal courts in the United States. Congress passed a law still in effect today called the Rules of Decision Act (28 U.S.C. 1652), which states that the laws of a state furnish the rules of decision for a federal court sitting in that state. Thus, a federal court in Texas, hearing a case based on diversity (as opposed to a federal question), has to follow the laws of Texas in resolving a case before it."

And Congress can only pass laws that pre-empt state law if they have the constituionally enumerated subject matter jurisdiction to do so.  Congress cannot just pass any law it likes.

And yes, you are right that Congress can change one of ITS laws if it doesn't like the Supreme Court's interpretation of it.  But say, if it does not like the holding in Miranda v. Arizona, it cannot just do away with 5th Amendment Miranda Rights if the Supreme Court says so.  This was an actual case a few years ago, and the Supreme Court struck down a law that tried to get around Miranda.  The Supreme Court does allow Congress to limit some of the Court's constitutional remedies under some circumstances, but it is entitled to tell Congress to back the fuck off and say that the Court's decision is the law.  That's how it works.

Congress can over rule any Federal court decision based on State Law, the State Constitution, or Federal law.

Akuma, why don't you re-read what I originaly did write? I have no idea what you think I meant to go off on the tangent you did. I was referring to congress changing court precident by passing a new law when the president was not based on the Constitution.

I know the Federal government can't pass any laws it wants too. But thanks to FDR, what little it can't directly force onto the states by federal law, it can through court sanctioned blackmail. That's how the US got it's uniform 21 drinking age, because the states would loose federal funding. The States are supposed to fund the Federal government, not the other way around, but the introduction of federal income tax law changed all that.

Tyrannical said: Congress can over rule any Federal court decision based on State Law, the State Constitution, or Federal law. Akuma, why don't you re-read what I originaly did write? I have no idea what you think I meant to go off on the tangent you did. I was referring to congress changing court precident by passing a new law when the president was not based on the Constitution. I know the Federal government can't pass any laws it wants too. But thanks to FDR, what little it can't directly force onto the states by federal law, it can through court sanctioned blackmail. That's how the US got it's uniform 21 drinking age, because the states would loose federal funding. The States are supposed to fund the Federal government, not the other way around, but the introduction of federal income tax law changed all that.

A federal court's interpretation of state law or a state constitution doesn't even involve Congress.  That state's Supreme Court or that state's legislature is the one with the authority to do something about it.  Congress doesn't have any say in the matter. 

Furthermore, the Supreme Court doesn't even bother with state law unless it is deciding whether or not it is constitutional.  Federal courts deal with it just because they have to.  A state's legislature and a state Supreme Court are the ultimate interpreters of their own law, not Congress.