Gdanning
22hr ago
It wouldn’t be so blatant if they didn’t pre-announce the race and sex of their appointees. Even just the plausible deniability of not doing that would improve the optics.
Why would one need plausible deniability for doing something that you think is sound policy?
Immediately narrowing the universe of candidates based on race and sex is definitionally racist and sexist.
No, it is definitionally discriminatory. That is not the same as racist/sexist. And sometimes both racial and gender discrimination are fine. There are lots of boys-only and girls-only schools out there, after all.
The “political legitimacy” of the racial spoils system of South Africa surely provides much comfort to its citizens.
Political legitimacy does not guarantee good policy, and it seems to me that South Africa has greater threats to the political legitimacy of its government than its "racial spoils system." And Taiwan, Belgium, New Zealand, Singapore and Croatia seem to be doing fine, despite having ethnic quotas in their legislatures. I note that South Africa does not seem to have such quotas. Perhaps it would be doing better if it did?
Gdanning
22hr ago
This is what your interlocutors are summing up as "racism is good, actually"
If that is the case, then my interlocutors need a more sophisticated understanding of what constitutes racism (rather than employing a definition that they almost certainly reject when used by their outgroup) as well as, more importantly, the issues surrounding representative democracy, including the very basic question of what makes it, and laws in general, legitimate. Do you know why the 26th Amendment passed when it did? Because drafting 18-20 yr olds to fight in an unpopular war when they had no right to vote for the legislators who were funding the war. And there is a reason that politicians from Bill Clinton to Nelson Rockefeller worked hard to get African American support for anti-crime laws. Because the perceived legitimacy of laws is important.
It is in direct contravention of the 90s colourblind ideal.
This is not correct. There were many intentionally "majority-minority" districts drawn at the time, particularly in the South. The South in the 90s, of course, was hardly a bastion of progressivism.
Gdanning
23hr ago
I think class and occupation are much more relevant.
That is very possibly true. Some people have argued that apportionment should be more on those grounds and less on geography. That might be a great idea. However:
- "X is more relevant than Y" is not an argument that X is irrelevant.
- This seems to be a statement that some white people (eg a white auto worker) might know the will of working class African Americans better than some African American people (eg, an African American lawyer). Even if that is true, my statement was mere that an African American representative is more likely
- Just to be clear, you are endorsing the idea that representation of interest groups is indeed legitimate.
People like Jesse Jackson and Al Sharpton have done more to harm black people in the US than all the KKK members combined.
- I am not sure why you are lumping Jesse Jackson with Al Sharpton, nor what that harm you imagine that to be, nor why you are choosing two guys who have never held political office. A better example would be the majority of the Congressional Black Caucus who voted for the 1994 Crime Bill, which some would argue has done more harm than good to the African American community. I am sure there are other bills that have not turned out well. Which leads me to ..
- I said that an African American is more likely to represent the will of African Americans. Not that every action by every African American politician is always going to turn out for the best. As Supreme Court justices have noted many times, ""The Constitution does not prohibit legislatures from enacting stupid laws." The majority of African Americans apparently supported the 1994 crime bill, according to sources cited here. And, where is your evidence that African Americans did not approve of what Jesse Jackson or even Al Sharpton did?
Black people are not a monolith
- Yes, obviously. If legitimate democratic representation required that those who are represented be a monolith, then all representative bodies would be illegitimate.
- More importantly, this is an argument in favor of Newsom's position: If no group is a monolith, including the People of the State of California, then it is even more important that representatives come from as diverse a background as possible, is it not?
It seems to me that you would probably agree that "Someone who is White is more likely to know the will of White Americans than someone who isn't" is kind of a meaningless statement. To the extent that it's true, it's trivial.
I don't know why it is either meaningless or trivial. It is not meaningless or trivial in Hawaii (21 percent non-Hispanic white) or in the by-far largest county in the country (25 percent non-Hispanic white)
Gdanning
1d ago
And some people think that the only reason to oppose abortion rights is to oppress women. Those people are also wrong. Perhaps you need to some reading on democratic theory, or on political legitimacy. You might find that there are, indeed, other reasons, even if you personally don't agree with them. Perhaps the writing of Lani Guinier re evangelical Christians might be a place to start.
Gdanning
1d ago
If we don’t care at all about sample sizes
The point is about camerality (if that is a word), not sample size. The Senate has veto power over legislation. If I gave Wyoming 50 seats in the House but none in the Senate, should its residents not complain because, overall, they are overrepresented?
Quit the semantic games for just one second please. “We” is obviously anyone who claims to care about “representation”.
That's my point. How about addressing the points I make, rather than those you think someone else might make?
To the Democratic Party, “representation” is merely a giveaway to groups most likely to vote Democrat.
- Which goes all the way back to my initial point, which is that the reason the OP is fairly described as uncharitable is that it failed to acknowledge the possibility that there might be a legitimate reason for Newsom to appoint an African American woman to the seat.
- If your point is that politics is a factor that goes into Supreme Court appointments, congratulations for stating the obvious. There is a reason that Donald Trump and other Republicans go in front of evangelical groups to brag about the Dodd decision. And, no, Clarence Thomas was not the most qualified candidate when he was nominated. Nor was Sandra Day O'Connor when she was nominated.
Gdanning
1d ago
Yeah, but where did you hear about the $3 meal? I would hate to fly all the way to India and end up paying $4.50 for dinner.
Gdanning
1d ago
Neither of them are even close to the "most"
My mistake. I meant to say Dick Chaney, rather than Mike Pence.
As in the thing the representative body is supposed to represent is the will of their constituents.
- Right. And someone who is African American is more likely to know the will of African Americans than someone who isn't.
- Moreover, representatives are also meant to represent the interests of their constituents, not just their will, which realistically does not exist re a lot of legislation. A diverse (not just racially but in many ways) body is more likely to represent everyone (and to understand how govt action will affect everyone) than a less diverse one. That is why the #1 selling point fir Jackson was her work as a public defender. Most judges with criminal experience are ex-prosecutors.
Gdanning
1d ago
Of course, I am used to the standard form, so it is hard for me to say how others view it. But note that in legal citation, the most important material is often placed in parentheses. So it is usually a "read this" signal rather than a "it's ok to skip this" signal.
Gdanning
1d ago
I was looking at congress as a whole
And if Congress was unicameral, that would be great. But it isn't.
If we truly cared about representation matching the population
I'm not sure who "we" is. Because I didn't say that. There is a big difference between 1) "It is fine if appointments are made in a manner such that all groups have at least some representation" and 2) "Every group should have representation which exactly matches their percentage of the population."
The comment in no way indicated that Democrats were promising positions to black women for illegitimate reasons. Only that they were doing so routinely.
I think we are going to have to disagree on that one.
If you're going to assert that Kamala Harris is as conventionally qualified as Mike Pence, Joe Biden, Dick Cheney, Al Gore
Well, Joe Biden and Mike Pence [edit: I meant Dick Cheney] might be the most conventionally qualified VPs ever, so they do not represent the norm. As for Al Gore, he served 8 years in the House and 7 in the Senate. No executive experience at all. Kamala Harris was a DA for 7 years and then Attorney General of the most populous state in the country for 6, and then Senator for 5 years. Then there is Dan Quayle (4 years in House, 8 years in the Senate). Then there are unsuccessful nominees like Sarah Palin and John Edwards (1 term in the Senate).
If you'd like to put Ketanji '379 days on the Court of Appeals' Brown Jackson's record up against the conventional qualifications of, oh I don't know, having an established judicial record for the senate to be able to examine before confirmation, then feel free to do so
Jackson has all the normal educational qualifications, clerked for the Supreme Court, served as the vice chair of the US Sentencing Commission, and was a US District Court judge for several years (which indeed created a judicial record for the Senate to examine). And note that commentators, including Justice Scalia, have long bemoaned the fact that few Supreme Court justices have experience as trial judges. In contrast, John Roberts had all of 13 months of experience as a judge before being appointed. Elena Kagan had no judicial experience. Clarence Thomas had a little more than a year. Sandra Day O'Connor had served five years as a judge at the county level and 1 1/2 years as a judge on an intermediate state appellate court.
You're (likely inadvertently) advocating to replace that system with a South Africa style quota.
No, I'm not. Because, you know, for 45 years, the Supreme Court distinguished between racial quotas and taking race into account. If they can understand that distinction, I am guessing you can, too.
Gdanning
1d ago
- There have been all of two female African American senators in the history of the Senate. I don’t personally care, but that is a fact.
- I believe there are currently 6 Hispanic senators and 3 African American senators, so African Americans are underrepresented in the Senate, compared to Hispanics.
- The last time Gavin Newsom appointed a senator, to replace Kamala Harris, he appointed Alex Padilla, who is Hispanic.
This would be supremely unreasonable if applied to other groups like Jews
Of course, for decades there was a de facto "Jewish seat " on the Supreme Court.
Gdanning
1d ago
Per your link, big-endian cites put the most important info first. If that is the case, why does the page cite come at the end, given that that is of vastly more importance than the fact that cert was denied, which is essentially legally meaningless. It adds nothing to the weight of the case as authority. And, the point of a citation is to aid the reader in finding the cited material; the fact that cert was denied does not do that.
PS: I don't understand "order 1120." 1120 is the page of the reporter than the order denying cert is published on, isn't it?
Gdanning
1d ago
Surely what makes it boo outgroup is the failure to contemplate the possibility that said outgroup might have legitimate reasons for doing what they did. Not to mention that the claim is a caricature of the outgroup's actual stance, since rather obviously the two black women appointed so far have had all the conventional qualifications for the jobs at issue. And, of course, a non-boo outgroup approach might consider that taking representation into account when appointing someone to a representative body does not seem to be unreasonable on its face.
Gdanning
1d ago
Hm. The latter uses 68 characters (without spaces) to convey the same information that the former uses 56 characters to convey. I think I prefer tired to wired.
Gdanning
2d ago
-
As I said, "Do you mean that, if the expert's opinion was supported by evidence, rather than being wholly conclusory? Yes, if so, the court erred in disregarding the opinion."
-
However, as I noted, since the decision was based on misrepresentations re several properties, not just Mar A Lago, the mere fact that the affidavit was supported by threadbare facts does not mean that the motion for summary judgment should have been denied, let alone that only a corrupt or stupid judge would have granted it.
Gdanning
2d ago
There are already three prominent Democrats who long ago announced they are running for her seat.
Gdanning
2d ago
cheap hookers
That reminds me of when I was in a 99-cents store and saw a pregnancy test on offer. Some things you don't want to skimp on.
PS: Bali? You said India; did you mean to type "Indonesia"?
Gdanning
3d ago
it's kind of irrelevant if we never get to the point where damages are being calculated.
There are many attorneys who make a very good living representing victims of illegal discrimination. Moreover, class actions are often an option. Were there truly no remedy, defendants would not settle suits. But they do.
And note that attorneys fees in successful civil rights suits, which are paid by defendants, can often be much greater than the damages. https://en.wikipedia.org/wiki/Uzuegbunam_v._Preczewski
Gdanning
3d ago
That is, do you think that as of this ruling, every White and Asian person who has been rejected from any AA-practicing university in the past few decades will be able to sue successfully for monetary damages equal to the drop in expected earnings they suffered?
- That depends on whether the decision applies retroactively, which can be complicated.
- Decades? Certainly not, because of statute of limitations issues
- Even more importantly, a given applicant would have to prove that he or she would have been admitted, if not for the affirmative action policy, which would be extremely difficult, if not impossible.
the current system is a judge flipping a coin to decide whether to take your case and then pulling a number out of an ass for the damages
I can assure you that that is not the case. First of all, why you think courts have discretion not to take a case is beyond me. As for damages, there are entire books published on the subject of tort damages and a whole slew of jury instructions on the topic. And see here:
How do litigators prove and attack compensatory damages? Proving damages Compensatory damages must be proven by a preponderance of the evidence – although courts may apply other burdens of proof such as reasonable certainty or substantial evidence, depending on the case. Proving compensatory damages typically requires presenting documentation such as receipts, testimony from the plaintiff or other witnesses about the impact of the tort on the plaintiff’s life, and, in some cases, expert testimony. Whether an expert is necessary depends on the facts and circumstances of the case, including the type of injury and the damages claimed.
Attacking damages Defendants attack damages evidence in the same ways they attack other evidence in the plaintiff’s case. This can be done by filing motions in limine – pretrial motions requesting that certain evidence be found inadmissible and not referred to or offered at trial – to exclude evidence of damages or limit an expert’s testimony.
Defendants can also move to exclude or disqualify an expert (sometimes called a “Daubert motion”), cross-examine witnesses, as well as introduce contradictory evidence and expert testimony about the existence and/or amount of damage the plaintiff has suffered.
How do litigators calculate compensatory damages? When calculating the plaintiff’s damages – or attacking the other side’s calculation – it is important to consider damage principles, claim valuation methods, and jury instructions.
Damage principles The collateral source rule: Benefits that an injured person receives from sources that have nothing to do with the tortfeasor may not be used to reduce the tortfeasor’s liability to the injured person. Mitigation: This doctrine of avoidable consequences holds that an injured plaintiff has a duty to take reasonable steps to minimize its damages and will not be able to recover for any losses which could have easily been avoided. Comparative negligence and contributory negligence: the affirmative defenses in negligence cases can greatly impact a plaintiff’s damages. States differ in apportionment of fault in tort cases. Claim valuation methods Adding up economic damages like medical bills and lost wages is relatively straightforward, but valuing intangibles like emotional distress is more complex. Two mathematical methods are typically used for noneconomic damages; the multiplier method and the per diem method.
The multiplier method: Start with the amount of the plaintiff’s economic damages and multiply them by a number between 1.5 and 5. The multiplier will depend on a variety of factors that a jury would consider in calculating pain and suffering. The per diem method: Some courts permit a calculation based on how many days an injury caused pain and suffering with a standard amount charged for each day; oftentimes a person’s daily salary is a measure. Jury instructions J>ury instructions may assist in calculating economic and noneconomic damages, or limit how counsel argue about the valuation. For noneconomic damages like “pain and suffering,” juries are sometimes told to assess damages that are “fair and reasonable” without much guidance. Litigators must come prepared to argue why the proposed changes are “fair and reasonable.”
Gdanning
3d ago
a top broker in the market would seem to be a reasonable expert witness.
Of course he is an expert. No one has said otherwise. The point is that an expert's opinion must be based on evidence. As another court put it, "Like a house built on sand, the expert's opinion is no better than the facts on which it is based." Kennemur v. State of California, 133 Cal. App. 3d 907, 923 (1982)
The $25 million figure isn’t even used in the prosecutors brief.
- Do you have a link to the brief?
- That is not relevant, because the court did not hold that the property is worth $25 million. It held that is was not worth $600 million.
Gdanning
3d ago
According to the decision, he did not, because the expert opinion did not include any facts. As the court said, under established law, "Where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to withstand summary judgment." Diaz v New York Downtown Hosp., 99 NY2d 542 (2002). Had the expert said something like, "I reviewed sales records for nearby properties since 1985 and found that they had appreciated an average of 50x, so I estimate that Mar A Lago was worth Y dollars at the time in question, then there would be cause for complaint. Did he say that, or anything similar?
Gdanning
3d ago
That’s not Palm Beach especially the good area or waterfront of which there is very limited supply.
And it would have been very easy for Trump, et al, to look at property records in the area and show that prices indeed increased fifty-fold from 1985 to 2021. Did they do so? There is no evidence of that. And if they didn't, then what is the basis for claiming that the court decision is meritless?
Yes I do believe the judge did this for Reddit talking points.
Thank you. That is very valuable information.
Gdanning
3d ago
You must not be familiar with Alex Kozinski, formerly of the Ninth Circuit:
"AIG's lawyers sat around contemplating their navels for two and one half years while the Bank was struggling to build up its good will."
"The only relevant evidence here demonstrates that, had Levolor done every little thing Ada Kern claims it should have, she would still have been laid off. Where, then, is her beef? ..."
"Carter stopped just short of pinning a Boy Scout Merit Badge on Silverman [a key government witness]."
"Miller was a prostitute, heroin user and fugitive from Cana- dian justice; but otherwise she was okay."
""Sex on the Internet?," they all said. "That'll never make any money." But computer-geek-turned-entrepreneur Gary Kremen knew an opportunity when he saw it. The year was 1994; domain names were free for the asking, and it would be several years yet before Henry Blodget and hordes of eager NASDAQ day traders would turn the Internet into the Dutch tulip craze of our times. With a quick e-mail to the domain name registrar Network Solutions, Kremen became the proud owner of sex.com."
"The parties are advised to chill."
And of course Justice Scalia was no stranger to using a similar tone:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
"Corruptly" also requires something more than an intentional or knowing act. Eg, the Fifth Circuit's pattern jury instructions say that the general rule is that "An act is “corruptly” done if it is done intentionally with an unlawful purpose." Re obstruction of judicial administration, it means "the defendant acted knowingly and dishonestly, with the specific intent to subvert or undermine the due administration of justice."
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