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Re: Liberals on Alito [Tyrius] [ In reply to ]
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I'm saying there's a difference between respecting a precedent, and the fact that a fed appeals judge has to rule in accordance with past SC rulings, there is no leeway for directly contradicting a SC ruling. When Alito overturned the law banning late-term abortions, he did so because the SC has previously ruled that an exception had to be made for the mother's life. He didn't really have an slack there, but as a SC he could overturn that ruling.

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Re: Liberals on Alito [jhc] [ In reply to ]
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Courts rule in direct contradiction to SC rulings all the time. The Ninth Circus judges make a living out of it. The recent banning of the death penalty for minors came from OH where the judges there looked at a very clear case from just a few years earlier in which the SC ruled that execution of minors was constitutional. The judges ruled it unconstitutional anyway.

That forced a SC review where the exact same judges upheld the lower court and reversed their own opinion from a few years earlier. Thank you Justice Souter.

The Ohio court was an activist court in that they gave the finger to the SC and made up something in the Constitution that wasn't there, but the judges wanted to be there. The SC went along for the ride. Go figure.
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Re: Liberals on Alito [jhc] [ In reply to ]
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As Art said, this:

fed appeals judge has to rule

is simply not true. The judges can rule however they want. There is no has to involved.
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Re: Liberals on Alito [Tyrius] [ In reply to ]
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OK, I stand corrected.

I'd actually like to read the appeals court opinion in Roper v Simmons (minor death penalty case) to see how they rationalized ruling against SC precedent.

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Re: Liberals on Alito [ajfranke] [ In reply to ]
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single issue folks might be boring, but they'll get you into office.

bush knows damned well he's got to pay the piper
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Re: Liberals on Alito [jhc] [ In reply to ]
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So I looked up that case if anyone cares (sound of browsers' back buttons being hit aand people yawning) - this sums it up

"The case worked its way up the court system, with the courts continuing to uphold the death sentence. However, in light of a 2003 U.S. Supreme Court ruling, in Atkins v. Virginia, 536 U.S. 304 (2002), that overturned the death penalty for the mentally retarded, the Missouri Supreme Court reconsidered Simmons' case and concluded that "a national consensus has developed against the execution of juvenile offenders" and sentenced Simmons to life imprisonment without parole."

...from goold ol wikipedia.

I'd still have to guess that the instances of lower courts going against the SC is pretty rare, and that a judge's rulings as an appeals court judge may not reflect what he/she might do on the SC.

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Re: Liberals on Alito [SOUP!] [ In reply to ]
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I'm still waiting for that up or down vote we owe Miers....or, err, are we not doing that up or down vote thingy anymore?
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Re: Liberals on Alito [peter826] [ In reply to ]
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In Reply To:
I'm still waiting for that up or down vote we owe Miers....or, err, are we not doing that up or down vote thingy anymore?
Is it just me, or is the phrase "up or down vote" one of the stupidist phrases to come out of Washington these days. Isn't it redundant? It's like a phrase you'd use to explain how the vote works to a third grader. Just say "vote"...sheesh

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Re: Liberals on Alito [vitus979] [ In reply to ]
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Since I previously weighed-in on Roberts and Miers, here's my 2 cents on Alito: he's qualified. It sounds like there will be some objections to his "ideology", but frankly, from an attorney's perspective, you want a judge who is consistent. In spite of the religious right's excitement, this doesn't appear to me to be a nominee who is being sent to carry out marching orders from the administration to torpedo abortion rights. There was a blurb in my local paper this morning about some of Alito's writings from his undergraduate days at Princeton, and the guy is clearly bright and an independent thinker. Would he vote to overturn roe under the right set of facts? Perhaps, but his outstanding record and credentials - independent of whatever his personal views are regarding abortion - should earn Bush the right to have his pick confirmed. Is it gonna happen without a fight? I think we all know the answer to that question, and that's too bad.
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Re: Liberals on Alito [Hickory] [ In reply to ]
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There was a blurb in my local paper this morning about some of Alito's writings from his undergraduate days at Princeton



Heh heh...if you read some of my papers form Princeton you'd think I'd definitely overturn Roe v Wade

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Re: Liberals on Alito [Hickory] [ In reply to ]
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In Reply To:
Since I previously weighed-in on Roberts and Miers, here's my 2 cents on Alito: he's qualified. It sounds like there will be some objections to his "ideology", but frankly, from an attorney's perspective, you want a judge who is consistent. In spite of the religious right's excitement, this doesn't appear to me to be a nominee who is being sent to carry out marching orders from the administration to torpedo abortion rights. There was a blurb in my local paper this morning about some of Alito's writings from his undergraduate days at Princeton, and the guy is clearly bright and an independent thinker. Would he vote to overturn roe under the right set of facts? Perhaps, but his outstanding record and credentials - independent of whatever his personal views are regarding abortion - should earn Bush the right to have his pick confirmed. Is it gonna happen without a fight? I think we all know the answer to that question, and that's too bad.
What do you think of his opinion that an employee can't sue a company for discrimination if the discrimination was not intentional, even if the discrimination was not in dispute? This opinion would have made proving discrimination much more difficult.

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"Go yell at an M&M"
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Re: Liberals on Alito [klehner] [ In reply to ]
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This opinion would have made proving discrimination much more difficult.

Are you asking if the decision was legally correct, or good policy?








"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."
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Re: Liberals on Alito [klehner] [ In reply to ]
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I believe he maintained the employee was treated unfairly but didn't necessarily mean he was discriminated against.
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Re: Liberals on Alito [klehner] [ In reply to ]
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What do you think of his opinion that an employee can't sue a company for discrimination if the discrimination was not intentional, even if the discrimination was not in dispute?

How can it be discrimination if it's not intentional?

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Re: Liberals on Alito [vitus979] [ In reply to ]
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In Reply To:
This opinion would have made proving discrimination much more difficult.

Are you asking if the decision was legally correct, or good policy?
Which part of my post was a question, and which wasn't?

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"Go yell at an M&M"
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Re: Liberals on Alito [klehner] [ In reply to ]
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Give me a break, already. You asked what we thought about his ruling in the case, and I want to know if you're asking us if we think it was legally sound, or if it was wise from a policy point of view. Don't be so difficult.








"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."
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Re: Liberals on Alito [jhc] [ In reply to ]
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In Reply To:
What do you think of his opinion that an employee can't sue a company for discrimination if the discrimination was not intentional, even if the discrimination was not in dispute?

How can it be discrimination if it's not intentional?
The argument was that the defendant (Marriott) might not have known that their decision was influenced by racial bias.

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"Go yell at an M&M"
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Re: Liberals on Alito [klehner] [ In reply to ]
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I'm having a hard time following.The argument was that the defendant (Marriott) might not have known that their decision was influenced by racial bias.

Either the defendant used race unfairly or didn't. You can't accidentally discriminate.

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Re: Liberals on Alito [jhc] [ In reply to ]
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In Reply To:
I'm having a hard time following.The argument was that the defendant (Marriott) might not have known that their decision was influenced by racial bias.

Either the defendant used race unfairly or didn't. You can't accidentally discriminate.


Actually, the court decision says that you can, if I understand the legalese sufficiently. If your processes are set up in such a way that they in fact discriminate, but you are, because of (unconscious) racial bias, unaware of that bias, you have done so.

Then again, I'm obviously not a lawyer.

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"Go yell at an M&M"
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Re: Liberals on Alito [klehner] [ In reply to ]
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In Reply To:
In Reply To:
Since I previously weighed-in on Roberts and Miers, here's my 2 cents on Alito: he's qualified. It sounds like there will be some objections to his "ideology", but frankly, from an attorney's perspective, you want a judge who is consistent. In spite of the religious right's excitement, this doesn't appear to me to be a nominee who is being sent to carry out marching orders from the administration to torpedo abortion rights. There was a blurb in my local paper this morning about some of Alito's writings from his undergraduate days at Princeton, and the guy is clearly bright and an independent thinker. Would he vote to overturn roe under the right set of facts? Perhaps, but his outstanding record and credentials - independent of whatever his personal views are regarding abortion - should earn Bush the right to have his pick confirmed. Is it gonna happen without a fight? I think we all know the answer to that question, and that's too bad.
What do you think of his opinion that an employee can't sue a company for discrimination if the discrimination was not intentional, even if the discrimination was not in dispute? This opinion would have made proving discrimination much more difficult.
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Re: Liberals on Alito [klehner] [ In reply to ]
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I dont think so Ken.

From Alito's dissent:

"To me, the evidence in this case shows two things -- (1) that the qualifications of Bray and Riehle for the Director of Services position they were seeking were roughly equal and (2) that Marriott may have treated Bray unfairly by not following its own internal procedures as to giving her proper notice that she had been rejected and failing to give her a proper explanation for her rejection."

What I take from my cursory reading of his opinion is that Alito is saying the two candidate's were roughly equally qualified. The law requires demonstration (at minumum) that the clearly qualified candidate be passed over before a determination of racial discrimination can be made.

Then again, I'm not a lawyer either, and I'd be grateful if one would chime in here.

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Re: Liberals on Alito [jhc] [ In reply to ]
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More from Alito's dissent in Bray: (http://vls.law.vill.edu/...Apr1997/97a1559p.txt)

Moving back to the case at hand, Bray's burden under prong
one was to show either that there were so many inconsistencies in
the criteria and procedures that Marriott used in its selection
process that a reasonable factfinder could infer that the process
was a sham and was not aimed at finding the best qualified
candidate, or that Bray herself was so much better qualified than
Riehle for the job in question that a reasonable factfinder could
conclude that Marriott did not, in fact, honestly believe that
Riehle was better qualified than Bray. I dissent because the
majority has not come close to holding Bray to her burden under
prong one and has thereby impermissibly diluted Fuentes' prong
one requirements for crossing summary judgment.


I think Ken has somewhat misrepresented the issue, though not, of course, deliberately.









"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."
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