Journal pudge's Journal: Dishonesty on Sotomayor 29
President Obama and other Democrats have been saying that when Judge Sotomayor said a wise Latina would more often than not reach a "better conclusion" than a white male, she "simply" meant that she would bring her own experiences to the court.
That is a lie. She was making a specific point. She referenced a quote that a wise man and wise woman will reach the same conclusion; she stated her disagreement with that view; and then she said a wise Latina will reach a better conclusion.
This was not a misstatement, or a slip of the tongue, it was an intentional and explicit point she was making.
However, this does not bother me nearly as much as her opinion in Hayden v. Pataki. Briefly, a New York state law that restricted the voting rights of felons was being challenged because, in the view of the challengers, blacks and Latinos were disproportionately affected and therefore the law violated the Voting Rights Act's prohibition of any voting qualification or standard that "results" in the denial of the right to vote "on account of" race.
Now, realize this decision is not about whether such prohibition "on account of" race actually occurred, but whether a case can go forward to make that determination. The majority claims that the Voting Rights Act does not apply to such statutes; this allows Sotomayor in her dissent to claim the textualist high ground, saying, the "plain terms" of the law say that the Voting Rights Act applies to such statutes.
But to me, this is all dancing around the plain fact that there is no evidence of any kind that the denial of rights is in any way "on account of" race.
But that all ignores the plain fact that the law in question does not deny rights "on account of" race. So I find myself much more drawn to Judge Raggi's concurring opinion than chief Judge Walker's opinion. Raggi notes:
While acknowledging the presumptive validity of felon disenfranchisement laws
... plaintiffs ... submit that New York's practice of prisoner disenfranchisement violates the VRA because there is a gross racial disparity in the state prison population. If permitted to pursue their claim, they seek to show that this disparity is a product of pervasive racism infecting every part of the New York criminal justice system, from stop and frisk determinations by police officers on the street, to charging decisions by prosecutors, to detention and sentencing rulings by state court judges. In short, plaintiffs propose to use the VRA to indict the New York criminal justice system for racism. So employed, the VRA would not only significantly intrude on, but also seriously disrupt, the orderly administration of criminal justice in New York, obviously a matter of legitimate state interest. Plaintiffs' suit would effectively impugn the constitutionality of countless state convictions without necessarily proving that any one prosecution or sentence was, in fact, discriminatory.
The suit does not even attempt demonstrate, in any serious way, that the system is actually discriminatory. For that reason alone, the majority judgment is the correct one, and in my view Sotomayor -- while perhaps correct in her dissent, that the VRA can apply to such disfranchisement laws -- is implicitly buying into the argument that New York's system is discriminatory, or could be adjudged such without serious proof.
Cross-posted on <pudge/*>.
Not nessesarily Valid? (Score:2)
It looks like this did not actually establish precedent. Even the judges making the (divided) ruling noted that they really did not have the authority. Has there been any movement on this in higher courts? Is this unique to NY State or have other jurisdictions encountered this issue?
You may find Althouse interesting on this topic (Score:2)
Well... (Score:2)
But to me, this is all dancing around the plain fact that there is no evidence of any kind that the denial of rights is in any way "on account of" race.
See... When you take that position--and I'm not disputing its validity--the debate moves into a much less "comfortable" place.
If you're correct, and institutional racism is not the cause of the disproportionately high incarceration rate of minorities, then what, exactly, is?
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If you're correct, and institutional racism is not the cause of the disproportionately high incarceration rate of minorities, then what, exactly, is?
I am not saying "institutional racism" is not to blame. That's not the issue. For example, you could argue that the fact that our society has oppressed black people for centuries is a major contributor to their higher incarceration numbers now.
That is "institutional racism," but that is not enough to trigger the Voting Rights Act: their incarceration would have to be the direct result of current bias in the system today, such as a policy of prosecuting blacks more often for certain offenses; more severe s
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That is "institutional racism," but that is not enough to trigger the Voting Rights Act: their incarceration would have to be the direct result of current bias in the system today, such as a policy of prosecuting blacks more often for certain offenses; more severe sentences for blacks for certain convictions; etc.
That is not, at all, what the law (VRA) or this particular judgment state. In fact, the majority opinion affirms that: "The amended version of  1973 [a section of the VRA] eliminates this 'discriminatory purpose' requirement and, instead, prohibits any voting qualification or standard that 'results' in the denial of the right to vote 'on account of' race." The reasons you state have nothing to do with why the court ruled the way it did.
The two reasons why the court actually ruled as it did:
For the reasons stated above, we conclude that the Voting Rights Act must be construed to not encompass prisoner disenfranchisement provisions such as that of New York because (a) Congress did not intend the Voting Rights Act to cover such provisions; and (b) Congress made no clear statement of an intent to modify the federal balance by applying the Voting Rights Act to these provisions.
In fact, th
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The reasons you state have nothing to do with why the court ruled the way it did.
Yes, it did. Or did you not read Judge Raggi's concurring opinion, which I quoted in my journal entry? Granted, this was not the majority opinion, but it was part of why one of those in the majority ruled with the majority, and it was explicitly part of my point.
In fact, the court specifically ignored the actual wording of the law, in favor of attempting to decipher what Congress "intended".
Yes, as I said in my journal entry: The majority claims that the Voting Rights Act does not apply to such statutes; this allows Sotomayor in her dissent to claim the textualist high ground, saying, the "plain terms" of the law say that the Voting
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Nope. She is -- as I noted in my journal entry, which you largely ignored -- "implicitly buying into the argument that New York's system is discriminatory, or could be adjudged such without serious proof."
That's my point. The majority opinion does not dispute the fact that the outcome of felon disenfranchisement disproportionately affects minorities, which is enough to trigger the VRA. By the law, they don't need to see proof that New York's system is discriminatory in its functioning, only in its outcome.
They acknowledge this in the majority opinion, but sidestep the issue by arguing lack of clear Congressional intent for the law to apply to felon-disenfranchisement.
Again, no, you're wrong: Raggi did this: Plaintiffs' suit would effectively impugn the constitutionality of countless state convictions without necessarily proving that any one prosecution or sentence was, in fact, discriminatory.
Raggi is wrong in his opinion. As you sta
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That's my point. The majority opinion does not dispute the fact that the outcome of felon disenfranchisement disproportionately affects minorities
Raggi does.
By the law, they don't need to see proof that New York's system is discriminatory in its functioning, only in its outcome.
You're wrong. Please read the law again. The outcome is the point, yes, but only if FIRST there is discrimination "on account of" race. That doesn't mean there was a discriminatory purpose in the NY law that disfranchises voters, but it DOES still require racial discrimination in the system, some bias "on account of" race.
Your reading -- that only the result needs consideration -- makes no linguistic or logical sense. Linguistically, you would not say "on account of" for a result, because tha
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Raggi does.
No, he doesn't. He never addresses the issue at all.
Your reading -- that only the result needs consideration -- makes no linguistic or logical sense.
It's the same reading taken by the majority, and Raggi in his concurrence.
From Raggi:
Intentional discrimination is not required to establish a violation. Rather, a factfinder considers âoethe totality of circumstances,â id. at  1973(b), to determine whether âoea certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [voters of different races or color] to elect their preferred representatives,â Thornburg v. Gingles, 478 U.S. 30, 47 (1986).
I don't see how you can come to the conclusion that there needs to be intentional discrimination in order for the VRA to take effect, when these decisions clearly state otherwise.
And logically, this would mean that any time any group is disfranchised out of proportion to another, that it is therefore in violation of the VRA, which is obviously not the intent.
Obviously. But, that's what the law says.
Indeed, you could run afoul of the VRA even if every race were represented proportionally: if you, for example, worked harder to incarcerate Asians, just because they are "underrepresented" in the prisons, then disfranchising incarcerated felons could trigger the VRA, as this could be a "standard that 'results' in the denial of the right to vote 'on account of' race."
Yep.
Raggi is wrong in his opinion.
No, he's not.
Well, that's a matter of opinion until decided upon by the Supreme Court. (Which looks like a possibility.)
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Intentional discrimination is not required to establish a violation. Rather, a factfinder considers âoethe totality of circumstances,â id. at  1973(b), to determine whether âoea certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [voters of different races or color] to elect their preferred representatives,â Thornburg v. Gingles, 478 U.S. 30, 47 (1986).
Exactly. Raggi very clearly disagrees with you that the result is all you need to look at: you have to look at the laws, practices, and structure that interact with conditions "to cause" inequalities, NOT simply whether the RESULT is unequal.
I don't see how you can come to the conclusion that there needs to be intentional discrimination in order for the VRA to take effect
I don't see how you can come to the conclusion that I said any such thing. I did not.
And logically, this would mean that any time any group is disfranchised out of proportion to another, that it is therefore in violation of the VRA, which is obviously not the intent.
Obviously. But, that's what the law says.
No, it does not. You are confusing "intentional discrimination" with "discrimination." You do not look at merely the effects or results: you have to look at the causes, and find dis
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Raggi very clearly disagrees with you that the result is all you need to look at: you have to look at the laws, practices, and structure that interact with conditions "to cause" inequalities, NOT simply whether the RESULT is unequal.
So, then how can you explain the current disproportionate disenfranchisement of minorities, if it is not caused by, "certain electoral law, practice, or structure [that] interacts with social and historical conditions"?
The "institutional racism", that you spoke of in your first reply to me, would certainly seem to be a "social and historical condition", and the "certain electoral law, practice, or structure" of prisoner disenfranchisement seems to interact with those conditions to produce the result of disp
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So, then how can you explain the current disproportionate disenfranchisement of minorities, if it is not caused by, "certain electoral law, practice, or structure [that] interacts with social and historical conditions"?
Legally speaking, of course, I have no need to explain any such thing. You have it backward.
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Legally speaking, of course, I have no need to explain any such thing.
Yes you do. The huge racial disparity in prisoner disenfranchisement is prima facie evidence of racial discrimination somewhere in the system (whether that is the legal, economic, or social system). Now you, arguing the other side must show why my prima facie evidence is invalid. That's how it works, legally speaking.
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Legally speaking, of course, I have no need to explain any such thing.
Yes you do.
Putting it in italics doesn't make it true.
The huge racial disparity in prisoner disenfranchisement is prima facie evidence of racial discrimination somewhere in the system
Obviously false. You're committing the question-begging fallacy.
Now you, arguing the other side must show why my prima facie evidence is invalid.
It, obviously, is not prima facie evidence of anything.
That's how it works, legally speaking.
No, it's not. You're just making it up as you go along.
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Obviously false. You're committing the question-begging fallacy.
No, I'm not.
You're simply confused about the nature and scope of the case and decision in question. The court found that, even if presented with actual evidence of discrimination on the part of the New York justice system, the VRA still would not apply, because felon disenfranchisement was not intended to fall under the scope of the VRA. (Though the actual discrimination on the part of the justice system would be covered by other laws, but not the VRA.)
What we are debating has nothing to do with the actual
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Obviously false. You're committing the question-begging fallacy.
No, I'm not.
Yes, you are. Or maybe you don't know what "prima facie" means. You are making the case that necessarily there is racism somewhere in the system just because there are proportionally more blacks and Latinos incarcerated than there are in the general population. This is simply false.
You're simply confused about the nature and scope of the case and decision in question.
You're simply making things up. I am not confused in any way, and you've not cited any example of me being confused.
What we are debating has nothing to do with the actual case, as decided.
False, of course, since it had to do with Raggi's concurrence. You're correct that it was not the opinion of
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You are making the case that necessarily there is racism somewhere in the system just because there are proportionally more blacks and Latinos incarcerated than there are in the general population. This is simply false.
Yes, and that is prima facie if there is no other reasonable explanation for the observation. Note that this case was not dismissed for lack of prima facie.
I am not confused in any way, and you've not cited any example of me being confused.
Sigh... Here it goes:
False, of course, since it had to do with Raggi's concurrence. You're correct that it was not the opinion of the majority, but I never implied in any way that it was.
You're confused about the nature of a concurrent opinion, especially one, like Raggi's, which fully concurrs with the majority. He agrees with each and every point of the majority, and presents further points to which the majority did not agree with. These points have just as much weight as those in a dissenting opinion, like Sotomay
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that is prima facie if there is no other reasonable explanation for the observation
First, that's false. The concept of prima facie is not in any way related to the idea of "true by process of elimination."
So I was right, you don't know what prima facie means. Indeed, the origins of the phrase is practically opposite from what you're saying here: it expresses the idea of "true at first appearance," and what you're saying is similar to "true at last appearance," having exhausted other possibilities.
Second, there's other reasonable explanations. (And no, I won't present any, because I hav
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So I was right, you don't know what prima facie means.
And, it seems, neither do you. You conveniently ignore the fact that this case was prima facie strong enough to not get thrown out on that basis. It means, basically, that the case as presented by the plaintiff is strong enough to stand up absent any response from the defendant. As the judges on the district and appellate court disagree with you regarding the prima facie nature of the plaintiffs case, I think I'll side with the ones with a law degree.
Second, there's other reasonable explanations. (And no, I won't present any, because I have no obligation to.)
See, after the plaintiff's case has stood up to prima fac
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You conveniently ignore the fact that this case was prima facie strong enough to not get thrown out on that basis.
That's not a fact at all. Once again, you're just making things up.
See, after the plaintiff's case has stood up to prima facie scrutiny ...
Question-begging fallacy.
Since this is just an online discussion, you don't have to do anything. But, don't try to mask your refusal in some lack of legal obligation.
See, the problem is, you're being fundamentally dishonest by saying that the fact of disproportionality is prima facie evidence of racial discrimination, and I don't want to reward that dishonesty by responding to it as though it were of some value. So that, coupled with no legal obligation to prove that case, is the reason why.
OK, let's see ... skipping your bullshit about Raggi not basing his decision on the thin
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You conveniently ignore the fact that this case was prima facie strong enough to not get thrown out on that basis.
That's not a fact at all. Once again, you're just making things up.
It is a fact. In a case of this nature, if the district judge does not see, prima facie, that the claims of the plaintiff, if true and unanswered, would be strong enough to rule in his favor, the suit would be thrown out on that basis. This suit was not thrown out for that reason.
What am I making up?
The results are not evidence. At all. And while you see no reason to believe they had none to offer, likewise, there's no reason to believe they had ANY to offer.
Whether they had any more evidence, or not, is irrelevant to this appeal. It simply does not matter, at all.
You did. Your bullshit about "you're confused ..." is textbook ad hominem.
Well, then you have my apologies for dragging the debate down to that level.
This makes it clear that you do not fully understand the scope of this appeal
Only if you take that to mean something it doesn't mean, which is unfortunately common for you, it seems.
So you're not actually goin
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It is a fact.
No, it's not.
In a case of this nature, if the district judge does not see, prima facie, that the claims of the plaintiff, if true and unanswered, would be strong enough to rule in his favor, the suit would be thrown out on that basis. This suit was not thrown out for that reason.
What am I making up?
Pretty much all of it. The suit was, actually, thrown out because the claims were not strong enough to rule in the plaintiffs' favor, as I'll get to in a moment.
Also, the standard was not whether the complaint would succeed if unanswered: s the District Court noted that in deciding the motion for judgment, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entit
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Far from ruling that the case would win if unanswered, the court states that the standard is whether they could possibly prove their claims [...]
This is picking nits, but I think the two standards are identical. Either way...
[...] but that if you don't cite actual facts to support your conclusions, then your conclusions won't be accepted. That means you need to at least hint at what evidence you have to support your conclusions, which the Court ruled they didn't do.
That's true, for everything but the plaintiffs' challenge to the VRA, of which you write:
Granted, in regard to the VRA portion, they did not discuss the lack of evidence and only focused on the lack of applicability; and granted, the VRA has a slightly different standard than the 14th Amendment does.
I think this, admittedly, slightly different standard of the VRA is what makes this case Supreme Court bound. I think its looser standard for finding discrimination may well be unconstitutional. It's a shame there's this Congressional intent issue clouding the more general question.
I still have the question, though, as to your statement that
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I think this, admittedly, slightly different standard of the VRA is what makes this case Supreme Court bound. I think its looser standard for finding discrimination may well be unconstitutional.
Fine, but that's beside the point here, which is that the District Court DID NOT accept any of the complaint as valid for supporting any of the claims, and all indications are that even if they had held the VRA did potentially apply, they likely wouldn't have found the complaint to represent a valid challenge to the VRA, either, for all the same reasons of lack of factual assertions to support the conclusory allegations.
I still have the question, though, as to your statement that Sotomayor's opinion, "is implicitly buying into the argument that New York's system is discriminatory, or could be adjudged such without serious proof." I simply don't see anything in her opinion to support that conclusion.
So you missed where I said "implicit"?
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So you missed where I said "implicit"?
No. I saw the word "implicit". But, that usually requires that she imply something. Here's her opinion, in its entirety:
I join in Judge Parkerâ(TM)s dissent, and write this separate opinion only to emphasize one point. I fear that the many pages of the majority opinion and concurrencesâ"and the many pages of the dissent that are necessary to explain why they are wrongâ"may give the impression that this case is in some way complex. It is not.
It is plain to anyone reading the Voting Rights Act that it applies to all âoevoting qualification[s].â And it is equally plain that  5-106 disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.
The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. The majorityâ(TM)s âoewealth of persuasive evidenceâ that Congress intended felony disenfranchisement laws to be immune from scrutiny under  2 of the Act, Maj. Op. at 25, includes not a single legislator actually saying so. But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of  2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.
I respectfully dissent.
Where is she implying anything of the nature that you claim?
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Where is she implying anything of the nature that you claim?
Asked and answered, counselor.
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Asked and answered, counselor.
You haven't answered the question at all. The closest you've come is in the last paragraph of your JE:
The suit does not even attempt demonstrate, in any serious way, that the system is actually discriminatory. For that reason alone, the majority judgment is the correct one, and in my view Sotomayor -- while perhaps correct in her dissent, that the VRA can apply to such disfranchisement laws -- is implicitly buying into the argument that New York's system is discriminatory, or could be adjudged such without serious proof.
But that reasoning is invalid, because this appeal, as it dealt with the VRA, did not address the suit's demonstration (or lack of same) of actual discrimination.
Would you have rather had her address a question which was not posed to the court?
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You haven't answered the question at all.
I did, you just didn't like the answer.
But that reasoning is invalid
No, it's not, as I've already discussed.
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Alright. I guess that's pretty much it, at this point. Agree to disagree, and all that. Hey, at least my spell-checker learned a new word: "Sotomayor".