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Monday, June 1, 2009

Sotomayor for SCOTUS? Affirmative Action & More

Just over 100 days into his Presidency, Barack Obama has excercised what some argue is the greatest power of the President, appointing a Supreme Court justice. This person's influence over our nation will extend decades after Obama's administration has ended and is thus of huge consequence. His pick, Sonia Sotomayor, is an Appeals Court justice with a compelling life story but a very troubling judicial philosophy as understood by looking at her past statements and cases.

A quote most have seen by now is from a speech she delivered at Berkeley in which she said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." Try to imagine what would have happened to a White male who had made the same comment, only about his inherent superiority as a justice to a hispanic woman. His career would be over. In the face of growing pressure from Democrats, the White House has attempted to address the statement with Obama saying he is "sure she would have restated it."

Another problem for Sotomayor is the Ricci case in which white firefighters were denied promotions despite passing the necessary test because no black candidates scored high enough to be promoted. Sotomayor dismissed the case, drawing harsh criticism from a colleage appointed by Clinton. Her decision is likely to be overturned by the Supreme Court just before she would assume one of its chairs.

Finally, at my alma mater Duke, she stated that "the appeals court is where policy is made." A comment that flies in the face of the constitutional role of the judicial branch of government to interpret, not make, law. There is very little doubt the Sotomayor will assume the bench as the first Hispanic on the Supreme Court, but I agree that while Republicans may lose the vote, they can win the argument by making a good case against judicial activism. After all, "there is something in our political DNA that wants impartial umpires who apply the rules, regardless of who thereby wins or loses."

Obama’s nomination of Sotomayor to the Supreme Court has brought to the forefront the issue of affirmative action, both because she, a Hispanic woman, was chosen and as it relates to her court decisions and statements. In light of the nomination, I have thought and talked more than ever about the issue of affirmative action and have decided to address the issue here and open up the comments section and PG Polls for each of you to share your view.

I’ve always viewed affirmative action as a temporal issue. By that I mean that, like most policy problems, it is not black and white, and furthermore, that it is a matter of timing. The day after blacks were emancipated from the tragedy of slavery in America, they certainly needed a boost to assimilate into the already advanced white society and economic market. At some later point, affirmative action becomes counterproductive and detrimental to its own ends of racial equality.

Affirmative action, without question, accentuates and perpetuates division based on the color of one’s skin. The more we artificially elevate or suppress opportunity for a person based on race, the more we highlight color differences, foster resentment and cheat equality. Any special treatment, positive or negative, someone receives based on nothing more than the color of his or her skin is quite literally racist and not the ideal for America. The ideal is for there to be no material differentiation between people based on the color of their skin. As an aside, I believe the “melting pot” that is the United States affords us a wonderful opportunity to celebrate and learn from diverse cultures, races and ethnicities. I do not believe we should ever be “color blind.” That is unrealistic and undesirable. We all benefit from people who are different from us and rightly celebrate our shared heritage with those who are similar. However, there is a stark difference between celebrating disparate races and scoring a person differently based solely on skin color.

As I said, I believe affirmative action was necessary after slavery and at some point becomes detrimental and wrong. Now, whether that “tipping point” has been reached or is still some point in the future is a matter of honest debate. I do not pretend to have the answer; however, I suspect we are not quite there yet. To be clear, based on my experience, I believe affirmative action is still appropriate in certain circumstances but is growing less so. A friend of mine, arguing against affirmative action, pointed to the election of President Obama as proof that the ultimate end of affirmative action had been reached and thus it is no longer necessary. Leaving politics aside for the moment, the election of Barack Obama was an inspiration to the entire world and a huge step toward racial equality in this nation. The intangible impact of a black man taking the oath of office in a nation where 146 years before such a man may have been a slave is enormous. However, it is not necessarily indicative of the end game in racial equality. Equality will have been achieved when over a 100 or 200 year span the proportion of black presidents approximately reflects the proportion of blacks in society. Barack Obama is a remarkable man who has accomplished a first; however, I’m not sure that means we can honestly expect those proportions to equalize without a little more boosting of previously suppressed minorities.

The impact of Obama's election illustrates one of what I see as the three major justifications of affirmative action. A black man serving as president, or CEO or doctor serves to shatter glass ceilings that children of the same race may have believed existed, giving them hope that they too can reach for the highest levels of position and success, even to be the most powerful person in the world. When later generations are not constrained by the weight of what has never been done before, they will reach higher and achieve more, further equalizing the races, erasing the opportunity and achievement gap and moving the nation towards a time when the color of one’s skin says nothing about who the person will grow to be and need not be considered in getting them there. For proof of this point, I look no further than the new hip hop song by Maino entitled All The Above. In the song, Maino says, “This what the ghetto done made me; I put that on my father. Tryna hope for tomorrow. When I think that I can't, I envision Obama.”

Second, all parties benefit from an educational environment that is diverse in ideas, talents, backgrounds and race. My education at Duke was much richer for living with and learning from people of different races and cultures. Admissions officers at Duke have told me that Duke, like most universities, practices affirmative action in making admissions decisions. To the extent that practice enriched the diversity of my experience and thus quality of my education, I am glad they do.

Third, in professions such as law and medicine, it can be important that the demographics of the practitioners reflect that of the general population. This is principally a matter of trust, and trust is crucial between a patient and doctor. By and large, people are more trusting of those they see as similar to themselves, yes, even in terms of race.

The issue of affirmative action has of coursed come before the Supreme Court numerous times. Chief Justice John Roberts said in 2007 that, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In 2003, writing the majority opinion for a Supreme Court case on the constitutionality of racial preferences in university admissions, Sandra Day O’Connor said, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

In conclusion, I believe affirmative action is unarguably unfair on the individual level (to the white applicant who is rejected to allow for a minority’s acceptance) but is beneficial to society as a whole both today and into the future. A world where the most qualified applicants are people of a variety of races is better than a world in which all of the most qualified applicants are white. I, like most Americans, agree with Martin Luther King that people should “not be judged by the color of their skin but by the content of their character.” I look forward to the day when all glass ceilings are broken and affirmative action is abolished forever.

Please comment and vote in the new polls on the site: Do you agree that affirmative action is a temporal issue? Do you believe affirmative action should be practiced today?

Other stories of note:

The California Supreme Court upheld the statewide vote in favor of Proposition 8, defining marriage as between a man and a woman, in what the WSJ calls a victory for democracy and Hertitage calls a victory for marriage. The decision set off a firestorm of protests ensuring that this is an issue that will be around in California and across the nation for a very long time. A new poll shows that 57% of Americans are against same-sex marriages.

Nicholas Kristof of the NYT has a fascinating piece about the inherent characteristics of a conservative versus a liberal. h/t Billy Hughes

Furor is growing over evidence that the Obama administration closed Crysler dealerships based on the party affiliation of the owners.

GM will file for bankruptcy today.
Business Week has a great cover story about the value of our online networks of friends.
A Texas hospital worker was forced to take down her American flag at the office.
Taxpayers are on the hook for an extra $55,000 per household.
A famous Kansas abortion doctor was killed in church this morning.
Heritage breaks down the 'largest expansion of government ever.'
Sonia Sotomayor has been described by lawers and colleages as a 'terror on the bench.'
Some believe Republicans risk losing Hispanics in opposing Sotomayor.
The NYT looks at Obama's extremely meticulous nominating process.

Opinion pieces abound on Sotomayor. Here are several I found interesting and worth a read:

Joe Christenbury, just home from studying in Singapore, has written a very thorough and enlightening column with his thoughts on health care for PG this week. Check it out! I also got a couple of great comments in response to my look at the health care debate. Please read what Danalee and Danny had to say. Below is my response to their comments:

"I certainly sympathize with Danalee's concerns about socialized medicine and, like her, look to other countries currently under the system to see its downfalls. Danny made a very interesting and important point when he said, "it's not that I do not have the same fears conservatives do of a public plan, it's my understanding of how horrible our health care system is today." As to this understanding, I defer to Danny as I have very little expertise on the health care system. It is very important to appropriately frame the policy choice against the status quo. If, as Danny suggest, the current system is worse than conservatives' worst fears about a socialized system, then the lesser of two evils becomes the best policy. I am not ready to concede that to be the case because I don't have a full understanding of the problems with the current system but am convinced of the major problems with socialized medicine.

What I've come to realize with the health care debate is that where you stand depends on where you sit, sort of. More accurately than where you sit, it is where your focus and chief concern is. My point is this, if you have or most care about people who have satisfactory health care then you vigorously oppose socialized medicine for all of the reasons Danalee and the Wall Street Journal have articulated. If you can't afford or most care about people who can't afford health care under the current system then you may support any means to extend coverage universally, even through a single payer system, despite and regardless of what aggregate cost such a plan would have on the system as a whole, especially those who can now afford care. As with so many policy problems, where you stand depends on where you sit."

Note: Thanks for making May the most successful month ever for the PG Blog. We had 571 unique visits to the website, crushing the October record of 244. Please leave your comments and answer the poll questions on the site! Thanks!


Danalee said...

I wrote a paper on the downfall of Brown v Board of Education 50 years later, that the same problems exist today that did then. I'll have to find it and ammend this comment later.

But my personal views are firmly against affirmative action. I disagree with race and gender being on college applications to begin with. That information should not be given until the applicatant is admited and plans on attending the university or college. Why hold the applicant pool to a standard of certain percentages of race? Why separate people in such a way? I've always felt it just continues the problems we've worked so hard to overcome, with equality and social acceptance between all cultures, genders, and races.
It really is reverse racism- we don't think they are beneath us but we feel we must hold them to a special standard based solely on their race. Why give them special treatment? Sure it's POSITIVE special treatment, but it's classifying them as different than everyone else.
America is more of a tossed salad, especially with affirmative action still around, the black vote going to Barack BECAUSE he is black, and the justice nominee being revered because she is a hispanic woman. The melting pot idea is accepting the fact that they are different races and genders, but not treating them any different, be it better or worse.

I may have gone on tangents because I am so against any grouping of people being treating unfairly or over fairly, and isntead think we should look at them as individuals without regard as race. I'm lucky enough to have gone to school in Florida, where affirmative action is not used and neither is race. They are strictly equal opportunity, where if you are qualified you are admitted. I had a greatly diversified class with black, hispanics, indians, asians, women, men, gay, lesbian, any and everything, simply because with that many people in one place there is bound to be an "appropriate amount of diversity".

(ps- they do have direct feeder programs at my alma mater from low-income high-risk high schools, but they don't consider race just their economic and social backgrounds)

MN Andy said...

The issue I have with Sotomayor is that she talks about race as an important factor for her decisions and then she backs those statements up with her decision on the Ricci case. She seems like another attempt by the Obama administration to force affirmative action back into the forefront. It seemed as though the American people were starting to step away from the discrimination that is affirmative action. I guess Obama wants to make sure that doesn't happen. At a time when the economy is struggling the way it is, I think that people should be worried more about who is best to do a job, not who is the correct race for the job. I may even be as bold as to say that affirmative action may have had something to do with the economic situation. Qualifications went out the door for many major corporations in recent years because it could look bad if a minority is turned down for a position. I don't like Sotomayor as a pick. The Supreme Court needs to stay away from politics, and anyone who thinks affirmative action is a good policy should not be a justice.

Also, Pearce. You should take a look at the MN Senate Race. Today arguments were heard in front of the MN Supreme Court. This is a prime example of activist judges doing what they do. Sen. Coleman has a strong grounds for appeal to the US Supreme Court if MN doesn't get it right. Equal Protection violations happened all over during this race. If this gets to the Supreme Court there is precedent for the case that Coleman is making. Also, there is the Equal Protection Clause in the Constitution, but I doubt many Dems have read that little piece of paper lately. I just want to make sure you are keeping up on this race. America doesn't need Al Franken being the 60th vote in the Senate.

mikeyr2 said...

When looking at her past statements and cases, Sotomayor's judicial philosophy is far from 'troubling', as you say.

You reference the Ricci case as a problem for Sotomayor--but her only problem, as criticized by the chief judge, was the sparse reasoning (very rare for Sotomayor) in handing down the decision...not the rationale itself for the dismissal. Given your own conditional support of affirmative action for the time being--and I applaud you for diverging from conservative orthodoxy here--it would seem you would support the Ricci decision.

I want to focus more on her second comment, because contrary to popular belief, it is not only defensible, but completely accurate. The Court of Appeals *is* where "policy is made". Of course the primary role of the judiciary is to interpret the law; however, what happens when the law is not clear? Well, very understandably, these courts CLARIFY the law, set precedent, and in so doing, make policy. Courts have literally made the policy of what constitutes unreasonable search and seizure, the entire notion of Miranda rights, privacy rights, and the list goes on.

So here's the deal: Republicans have access to hundreds of thousands of lines of text in her many legal decisions, and they have thus far been able to make an issue out of TWO LINES in the speeches, not decisions, she has made--one of which is debatable, and the other of which is as true as "the sky is blue". Of course, I shouldn't leave out the one decision (Ricci), which fortunately continues a societally beneficial policy that you agree with. Sorry, but it doesn't sound like they are going to "win" any argument.

If something in our political DNA wants "impartial umpires", then part of our DNA is delusional, for there is no such thing. Judges are not computers; they are human beings who harbor diverse emotions, experiences, and yes, even political leanings that contribute to their decision-making capacity.

Republicans will never make a good case against "judicial activism" given that, amazingly, they themselves morph into 'judicial activists' when it suits their purposes. The full-court press to overturn Roe v. Wade precedent is but one example. Another glaring example is the highly activist Bush v. Gore decision, decided far from impartially, but on party lines.

On this basis, it is ironic that MN Andy rails against the 'activist' judges of Minnesota when the "precedent for the case Coleman is making" is in fact one of the most activist decisions of all time (Bush v. Gore). In that opinion, furthermore, Rehnquist--realizing that his decision could never stand the test of time--specifically stated that it was NOT to be considered precedent. Minnesota and Florida are apples and oranges. Unlike Florida, the election laws of Minnesota governing recounts are fully clear, and they were fully followed. This is why the (as politically impartial as you can get) panel of one Democrat, one Republican, and one Independent judge voted unanimously in favor in Franken...and why the MN Supreme Court will do the same.

MN Andy said...

mikeyr2: You say I am picking on Bush v. Gore for this. True, but you are not clear on what I am saying. There was more than one ruling in that case. I am referring to the 7-2 ruling the court made in order to provide equal protection of voters (you should look this ruling clearly addresses the issues that Coleman is facing in MN). I do not see how that can be seen as activism. That is call standing up for the 14th amendment. You seem to be making bold statement about the case. I was able to sit through the entire process and it was not as fair as you may think. There are ballots that were cast that are not being counted because of election rules. Then in other cases, the same rules were not followed in different parts of the state, but those ballots are being counted. I do not think that equality is the name of the game here. This issues is clearly addressed in Bush v. Gore. There were two parts to that case. The counting of the ballots is what matters in the Coleman case. Since there is no time limit on this case, the 5-4 decision is irrelevant in MN.

You say "Unlike Florida, the election laws of Minnesota governing recounts are fully clear, and they were fully followed." You are wrong. The fight that is happening in MN is based on the absentee ballot rules. These rules were not followed. It is clear that they were not followed. Al Franken's lawyers have said that they were not followed. But, they also say that it's too late to do anything about it. There are thousands of voters who would have had their votes counted if they had lived in a different city. There are also thousands of voters who should not have had their votes counted. Election judges who were in charge of reviewing the ballots to determine if they followed the rules have testified that there were different standards followed than what the law says. This is why I argue that these judges are activists. They are allowing the election law to be broken. They are creating new standards for how elections will be handled. I would say that the 14th amendment has more to say here than just saying "oops it's too late to fix the problem."

The basic idea of one person one vote is not being upheld in these rulings. I don't think that MN election law can over rule anything that the Constitution says. Franken is benefiting from judges breaking the rules.

Michael Rosenberg said...

For absentee ballots AND other ballots, Minnesota's laws are much clearer than Florida's about general procedure for which can be counted and which can be thrown out. In fact, the trial court affirmed this a few months ago when they ruled that the state-wide standards were completely clear.

I am aware of the 7-2 portion of Bush v. Gore, but even this was explicitly not intended to be taken as precedent. But even if you WERE to take this as precedent, that specific precedent covered a state recount...not the counting of illegal absentee ballots before a recount. Again though, Florida is not Minnesota, and the Minnesota trial court already found no evidence of systematic discrimination such that an Equal Protection claim could be valid.

Coleman was arguing, at least a few months ago, that because some absentee ballots were counted illegally in some parts of Minnesota, therefore, other ballots should be counted in the same illegal manner throughout Minnesota. If some jurisdiction had accidentally--and illegally-- counted the absentee ballots of teenagers and felons, Coleman would say that the way to remedy this would be to compound this illegality by counting the ballots of teenagers and felons anywhere else. The trial court didn't buy this argument, and I suspect the MN Supreme Court won't either.

Election problems happen all over the United States. But the errors in Minnesota's case were mistakes that simply don't rise to the level of malfeasance and systematic discrimination that are requisite for a legitimate Equal Protection claim. The real activists, in this case, are those who seek to so generously apply the claim as to subvert its real purpose...who want to Actively overturn the final decision of the Canvassing Board AND Trial Court--both of which, again, were truly about as impartial as these entities could get.

MN Andy said...

I am not even going to respond to what you wrote Michael. You are only picking on bits and pieces of the case in MN. You are making arguments based on what I would assume are the media reports. You are wrong in what you are saying. I sat through every day of the canvass board meetings. I was there. I do not need some hack in DC telling me about MN election law. I have a feeling I know a little more about it than you. Read what I wrote. Laws were violated in this case. Democracy is not being served with the judges decisions. Sure they are ruling in the case, but that doesn't mean what they say is right. Just like what you just said. YOU ARE WRONG.

Michael Rosenberg said...

I may not live in Minnesota, but I have followed the case and read the trial court's decision. (In my opinion,) there is no basis for an Equal Protection claim here, and no proof that errors changed the election's outcome. I was hoping we could be more civil, but I can understand your disappointment with court decisions that didn't, and probably won't, resolve in Norm Coleman's favor.

MN Andy said...

Keep thinking you know what you are talking about. And I wouldn't have to be 'uncivil' if you presented your argument in a better manner. I wasn't looking to get into it with anyone. You just started talking about something you don't know anything about. I can't let a lie keep going. I do not think the trial court's decision is enough to base your claim. I think you are missing a good amount of information. If one person gets a vote counted that should not have been counted and another person doesn't get their vote counted based on the same situation, that is grounds for an equal protection claim. There are thousands of stories like this in MN. There were witnesses in the trial that made these claims. There were election judges who claimed that they allowed votes to count that were in violation of the election law. I think you should go back and look at more information before you tell me what you think. I think I am a little more informed than you about this.

Michael Rosenberg said...

Given that my interpretation of both Equal Protection and Minnesota election law totally reflects that of an (informed) trial court and that of an (informed) State Supreme Court, I could just have easily--probably more easily--have argued that you, in fact, "don't know what you're talking about". But so far, I have avoided such ad hominems.

You say that "if one person gets a vote counted that should not have been counted and another person doesn't get their vote counted based on the same situation, that is grounds for an Equal Protection claim." Following this logic through, if just one felon in Minnesota mistakenly got his vote counted, and literally every other felon in the state--rightfully--did not, then there is grounds for an Equal Protection claim. If just one person has her vote eaten up by a machine that suddenly malfunctions, and all other votes are counted properly, then that too is grounds for an EP claim. Your interpretation of "equal protection under the law" is so generous and expansive that if you were to apply it impartially, you would find legitimate claims absolutely everywhere, and as a result, you would seek to nullify just about every election that has ever taken place in the United States.

It was a close race. A recount was overseen by a bipartisan panel--and Franken won. A bipartisan trial court affirmed the validity of the outcome. Now, even the Republicans on the Minnesota Supreme Court seem poised to do the same. Why? Because the Coleman camp has never been able to prove that a) any systematic discrimination or voter disenfranchisement was ever evident, or b) any of the alleged irregularities were enough to definitively sway the election outcome.

No election is perfect. Even if your claims were valid, they would hardly justify overturning the election results. In fact, the remedy you seek would be the greatest Judicial Activist decision of them all: have a Court invalidate an entire election that has already been legitimately recounted and certified on the basis of a hazy Equal Protection claim.

MN Andy said...

The city of Minneapolis did not reject an absentee ballot due to an unregistered witness, when in fact there were unregistered witnesses. This was agreed upon by many different witnesses during the trial court which you seem to base all your understanding. Out of thousands of absentee ballots in the city, none were rejected for this claim, where as in Carver County, hundreds of ballots were rejected based on this LAW. Minneapolis election officials broke the law. In an election that is separated by such a close margin, this is not just a small issue.

Plus, I cannot help that you are easily offended. Don't get mad when I call you out for being wrong. I am not even going to get into the claims you are making about 'bipartisan.' That's something of its own.

What I want you to do is look up the absentee ballot rules for MN. Tell me the four steps that a ballot must follow to be valid. There have been countless times when ballots were rejected for no reason, and other times when they were not rejected because of a bad election judge. How many ballots were added during the trial? What makes these ballots any different than other ballots? The judges in the trial were picking and choosing ballots. In a race this close, that is not how it should be handled. Also, the trial court does not have the jurisdiction to remove ballots from the count. There is only on way to fix that, a new election. They are not in the position to call for the new election.

You are just mad that you are not right. Keep trying to prove me wrong. When you do, give real examples, not just ideas that everything was bipartisan and the judges said this and that. Had the judges been right, there would have been no appeal to higher court. You make a lot of wild claims about what the court has said and what they will do. Prove what you are saying. You have a limited scope of information you are pulling from. Look at all of the court documents that have been filed since November. When you do that, get back to me. You can't just look at a trial court ruling and say that that is the word of God. I bet you think Nanci Pelosi is telling the truth with the CIA memos. You seem that naive.

Michael Rosenberg said...

It is interesting that you accuse me of making wild claims immediately after saying this: "Had the judges been right, there would have been no appeal to higher court."

I'm sorry, but anyone can file an appeal. Legitimate rulings get appealed every day. The existence of an appeal, quite clearly, does not prove the original ruling wrong.

Contrary to your belief, this is not about me. And actually, the burden of proof never rested with me. It rests with the plantiff seeking to overturn certified election results. Neither the Coleman camp in its briefs, nor you here on this blog, ever proved a scheme of systematic disenfranchisement, fraud, discrimination, or vote tampering. All you have shown are minor inconsistencies among jurisdictions in election procedure: the type that occurs inevitably in every state and every election, and the type that result from reasonable differences in the election systems among jurisdictions. You have no proof whatsoever that the election outcome would have been definitively reversed had your cherry-picked ballots been counted. During the recount, remember, when both parties managed to agree to count a certain group of absentee ballots that had been wrongly rejected, it just so happened that Franken's lead expanded beyond what it already was. When the court ordered more absentee votes counted, Franken's lead increased yet again. What makes you think his lead won't continue to increase?

You say "[adding ballots] is not how it should be handled," but this approach of picking and choosing ballots is precisely what your side has been advocating all along. Your side did (and still does) want certain ballots added, including those that I just mentioned that ultimately worked against you, as well as certain ballots removed.

You believe the lower court must have been wrong because, well, Norm Coleman filed an appeal. I believe the lower court was right because its decision has a sound basis in law. It's relatively clear cut: Equal Protection does not cover reasonable differences in jurisdictional procedure. Election officials in Minnesota did the best job they could given the resources available. There was no intent whatsoever to discriminate against voters. Perhaps most importantly, even if laws were unintentionally broken (which they were not), Coleman has not proven that the outcome of the election would be affected.

You seem to believe two imaginary things: One, that a perfect election is attainable. Two, that you are right--given that, after all, Coleman did appeal...and you were there.

MN Andy said...

You still have not given reason for me accept what you are saying. Make a claim and support it. And me being present throughout this has given me more information than you have. I did not claim that that was the reason I was right. I used that as support for the claims that I was making, because I was present when information was presented. I have knowledge of what is going on. You do not know what you are saying. So prove what you claim.

And these ballots that "my side" wants added are not just random ballots. These are ballots that were rejected on election night because they didn't fit the standards. But, I guess letting thousands of ballots into the count that were in violation of the law is ok to you. I guess we don't need laws in this country. In a race that is so close, these ballots can make a difference. I'm not saying that these are Coleman votes. I am saying that these are votes that should be allowed. No one knows what these votes are. But, if others were counted, then these rejected ballots should be counted as well. This is where the Bush v Gore decision comes into play. If the law was broken, then break the law for everyone, not just a few voters. There needs to be a clear standard to follow when counting a ballot in an election. There were 87 standards that were used on election night. This was a fault to the election system in MN, which by the way was run by a Democrat. Since breaking the law is not an option, then the best result would be a re-vote. Make it clear what the law says, and stick to that law.

I like the fact that you are just assuming what I am saying. You said, "Election officials in Minnesota did the best job they could given the resources available. There was no intent whatsoever to discriminate against voters." Does that mean that this should all be over looked. Just because they did there best. Well, there best wasn't good enough. Had they done their job, there wouldn't be questions about absentee ballots. I want you to explain that statement to me as well. Since you do not live in MN, tell me how you feel they did. Since I know nothing about MN on election day. Tell me what you know that I do not know.

I find it interesting that you like assuming what I am saying. Is it because you don't like that someone called you out on this? I was not intending for this to be a back-and-forth, but you decided to open your mouth. I also like the idea that you keep thinking that this was all sound law. Explain that to me. I keep asking you to back up what you are saying, but you can't. You can say all you want that the law is being fallowed, but in order to make an actual argument about this, you need to support what you are saying. I have not seen you support your claims. A weak argument is all you have. Put a little effort into your claims. You do not know enough about this topic to be responding. So just give it up.

Michael Rosenberg said...

Your responses have been almost entirely focused on personal attacks, not the law. Your being there is not support for the claims
you are making; and your merely saying "you have knowledge of what is going on" is not support for the claims you are making.

I hate being redundant, but you are making it necessary. The burden of proof to overturn the election results does NOT rest with me. It rests with you and Norm Coleman, period; and you have not proven your case. Again, Bush v. Gore does not come into play, because the decision itself says so. Just one line from that decision provides all the support I need: "The question before the Court is not whether local entities in the exercise of their expertise, may develop different systems for implementing decisions.'"

If you want to stop jurisdictions from exercising reasonable discretion in determining which absentee ballots to count, and if you want stricter standards for future elections, then I suggest you take this up with the Minnesota state legislature. But the courts will not overturn a certified election on the meager basis that the results MIGHT have been different if a Coleman-approved standard had been in place throughout the state. Ironically, too, while you say your side wants a clear standard, Coleman's preferred standard in his briefs is one of a hazy "substantial" compliance instead of strict compliance.

By the way, if you got your wish for a new election, Norm Coleman would be even more likely to lose now than he was back in November. For Coleman's own sake, you shouldn't even want a re-vote. So, I suggest that you and Coleman just give it up. Before long, anyhow, it looks like you will be forced to.

MN Andy said...

I have supported my claims about the law. You on the other hand have not. I cant help that personal attacks are easier when dealing with someone like you. I cant help that you are not supporting your argument. Coleman has nothing to do with what you are saying. You made a back it up. How has the law been upheld in this case? I have asked you time and time again to explain this. How has the law been upheld when votes were allowed into the count that should not have been? What has the court done to protect voters? I will keep asking this question until you answer. You keep avoiding my question because you do not have an answer for me. The 14th Amendment trumps all of your arguments. Don't respond unless you have a real answer to my question.

Michael Rosenberg said...

It is not illegal for different jurisdictions to implement their own election systems, and it is not illegal for jurisdictions to use their discretion in how they uphold MN election law. Minor irregularities and differences in election procedure do not equate to breaking of the law.

And again, even if the law were broken, as you believe, it cannot possibly justify breaking the law everywhere else in the state.

Besides, it is in inevitability that if you dig deep enough in any election anywhere in the world, you will find votes making it into the count that shouldn't have. It's a fact of life. Mistakes happen. Machines malfunction. Unless there is solid proof that those very votes swayed the election in and of themselves, the results stand.

MN Andy said...

MN Election law (which you seem to know nothing about) has rules regarding how a ballot is to be counted. These rules were broke. That is a violation of MN Election law. I am not saying that someone should go to jail for this, but that there should be a clear understanding of the law. When there was a rule that was ignored by a city (Minneapolis) that is the largest in the state, that is a problem. The problem only becomes larger when the vote total is as close as it is currently. Are you saying that as long as you are not caught doing something wrong it is fine?

Plus you still are not answering my question.

Michael Rosenberg said...

Yes, and it is true that some jurisdictions follow strict compliance and others follow substantial compliance.

Note: Substantial--NOT Strict--compliance is the exact standard that Coleman is advocating for in the briefs. By your own logic, Coleman is advocating breaking the law!

Oh, but I know more about Minnesota election law than you think, and here is what it says: for the 14th Amendment to be at all relevant in Minnesota, *within a given jurisdiction*, there be either a) an intentionally discriminatory standard for counting ballots, or b) a completely haphazard, arbitrary standard.

One different election judge may have used a slightly different approach than another, but what matters is that the approach of each was reasonably complaint and fairly applied. No evidence in Minnesota suggests anything happened otherwise.

Pearce said...

Well, that was a fun debate to watch. Back to what Mike had to say about Justice Sotomayor in the second comment. I maintain that Judge Sotomayor’s judicial philosophy is troubling enough to necessitate serious scrutiny, as should be given any Supreme Court nominee, when she goes before the Senate Judiciary Committee next month. I have not said that I will oppose her confirmation to the high court; however, her words and cases, principally Ricci, concern me. You are incorrect that the only problem with her Ricci ruling was its scant justification. Based on writings about the decision it would appear that her scant reasoning was precisely due to the fact that the judicial ruling was so weak. She hoped to brush it under the rug and, therefore, did not offer a thorough defense of her ruling. I am sure she was dismayed when the Supreme Court, the one on which she will likely sit, decided to take up the case. All observers that I am aware of, by the way, believe that her decision will be overturned when the Supreme Court comes back with their decision in the coming weeks. The Supreme Court of the United States does not overturn a lower court judge on the basis of “sparse reasoning” but rather due to bad judgment in light of the law. Also, my conditional support of affirmative action is not in conflict with my unequivocal objection to Judge Sotomayor’s ruling in the Ricci case. The Ricci case was not one of a black firefighter being chosen over a slightly better qualified white firefighter. In this case, the white firefighters who had struggled and succeeded on the test were inexplicably discriminated against without any overriding good in giving a minority a position of leadership within the firehouse. Because no Black firefighter made a sufficient score to earn the position, no one, not the Whites, not the Hispanics, was given the promotion they rightfully earned. As Peggy Noonan asks, “What is affirmative action and when is it quota making? Was her decision in the Ricci case “empathy” or was it a very selective sympathy that resulted in the victimizing of human beings who were not members of a politically favored ethnic or racial group?” I stated my support, for a short time longer, of affirmative action. I have never supported racial quotas which are a much more egregious and far less defensible example of racial discrimination. This is what was at play in New Haven, if not worse. For a detailed analysis of the case, please read the National Journal piece by Stuart Taylor @

Pearce said...

As to appeals courts making policy, your point that “these courts clarify the law, set precedent, and in so doing, make policy” is well taken except for the fact that they do not and cannot actually make policy. Policy is law written by the United States Congress and other legislative bodies around the country. You are absolutely correct that appeals courts are forced to made decisions and set precedents in the gray areas where existing policy is unclear; however, it is important to note that what they establish is precedent which may or may not be treated as policy and is not policy unless and until a legislative body makes it so. This is where Sotomayor was wrong in what she said at Duke, stating a view that flies in the face of our Constitution and defines judicial activism.

On your last two points, while it is true that the “richness of experiences” that a justice has in his or her lifetime frames and shapes judicial philosophy and decision making, it is expected that the justice be free of any systematic bias that consistently elevates one type of person above another in making decisions. There is a reason that our symbol of justice is wearing a blindfold. To whatever extent possible, our justices are meant to and should be impartial arbiters of the law. To your point about the activist intensions of those who seek to overturn Roe v. Wade, the major problem with Roe v. Wade is that it was activist from the beginning in that the Supreme Court ruled on a case that should have rightfully been left to the states. The mere act of overturning precedent does not make a decision activist. If it did, the Supreme Court by definition would be an activist court regardless of its judicial philosophy.