Wednesday Writs: Judge Jackson, Facts Be Damned Edition
Photos of the 2020 Parsons Dinner, which honors a different distinguished African American federal jurist each year.
We have a new Supreme Court nominee to fight over, which means some of us will examine her record as a judge, some of us will examine her record as a person, and some of us will examine our belly buttons due to total and complete apathy. And some of us will see what the main talking points are about the nominee from our preferred ideological corners and run with that, facts be damned.
When Amy Coney Barrett was nominated, I tried to help inform opinions with a lengthy, four-part analysis of her work as a judge. While regular readers of OT and some folks on Twitter with a genuine interest might have read all that, a great deal more people simply decided that she was perfect/unfit because of her perceived political persuasion and personal beliefs. It will be no different this time around, as Judge Ketanji Brown Jackson is scrutinized by the masses. Well, that portion of the masses that pays any attention at all to the makeup of the Supreme Court, anyway.
Listen, I’m working on it. I am trying to read through some of her opinions as a federal judge (mostly during her time on the District Court, as she has only authored 2 Court of Appeals opinions.) It is labor intensive, and I’m busy. I’ll get to it, probably. But in the meantime, I want to address this garbage:
Biden's SCOTUS pick represented terrorist suspects as public defender … so there's that https://t.co/TlchCXa9Qp
— Not the Bee (@Not_the_Bee) February 26, 2022
“So, there’s that?” What is “that”? The fact that she performed her duties as an officer of the court by upholding our constitutional guarantee of the right to counsel? Judge Jackson was a public defender. It was her job. She likely had little or no say in what cases she was assigned, but even if she did, or even if she had taken that case for a fee as private counsel, so what?
I was not part of a public defenders’ office but I was on the appointment list as private counsel willing to represent indigent clients. I also accepted cases privately for retainers. In both capacities, I defended criminals. I had some clients I truly believed were innocent and some I knew for a fact were not. I represented accused child abusers and rapists, and even a few alleged murderers. I never felt a shred of guilt about it, though some friends and family opined that they “could never” and I was often seen as an accomplice by complainants, victims, and law enforcement. I felt like I was doing some of the most noble work in the legal profession. I still feel that way about criminal defense.
Some lawyers, during their careers, find themselves the mouthpiece for some seriously repugnant people. Harvey Weinstein had counsel, as did Jeffrey Dahmer and Tim McVeigh and any number of other horrid excuses for humanity. And thank goodness they did; just imagine how much prosecutors could get away with if there was no lawyer on the other side? And what can (should) happen when prosecutors break the rules? It’s that thing we so often hear about: the bad guy “gets off on a technicality”.
Just imagine that you somehow find yourself charged with the most heinous, disgusting crime you can think of. You’re the accused in a case that made the front page, the type of case prompting a mob of torches and pitchforks outside the jail calling for your immediate hanging. Only thing is, you didn’t do it. Or it was an accident. Or any of a hundred other possibly mitigating things. The public doesn’t know that or care to hear that; all that matters is that you are accused of this horrific thing and they all want you under the jail for it. Now imagine that no one will help you. No lawyer is willing to protect your rights because the thing you are accused of is just so terrible and you are so loathed. You are on your own before the court with no legal knowledge beyond that which you learned from Jack McCoy or Ben Matlock. You have no way to call witnesses, to point out when the prosecutor is breaking the rules or any ability to investigate your own case. You are a fish in a barrel and all the guns are pointing at your head with no one to help. That is apparently the way “Not The Bee” thinks things ought to be, I guess.
I retweeted this nonsense from Not the Bee with incredulity and had at least one response in favor of this dumb tweet. “She’s a political activist in robes,” he said. I asked for examples from Judge Jackson’s body of work; he had none, which is not surprising since he also thought she had no judicial experience beyond her short stint on the Court of Appeals. But it’s what he’d heard, you see. And she’s a minority and she was a public defender so it must be assumed that she is a liberal political activist unfit for the bench.
Judge Jackson’s service as a public defender, even for a suspected terrorist, does not make her unfit to sit on the high bench. In fact, in some ways, it makes her more qualified to do so than her already seated colleagues. She’s fought in the dirty trenches where corporate lawyers and law professors and in-house counsel and law clerks fear to tread.
Is Judge Jackson otherwise suited for the job? I don’t know. I’ll let you know when I’m done sifting through hundreds of opinions to try to get a read on her. But if she isn’t, Judge Jackson representation of unsavory clients is not why.
Good piece, Em.
I’ve got to say that so far this really seems like going through the motions. She’ll be confirmed barring weirdness, and as she’s replacing Breyer, she won’t be shifting the partisan composition of the Court, so it’s hard for even hardcore partisans to get too worked up about it.
Nonetheless, I think sometimes the obvious answer is the right one:
“So, there’s that?” What is “that”? The fact that she performed her duties as an officer of the court by upholding our constitutional guarantee of the right to counsel?
Yes, exactly. It’s been a long time, but there was a genuine Rightward belief through much of the ’00s that jihadist terrorists should not receive any sort of legal protection, either those offered by the Constitution or the rules of war. The ugliest example of this was torture, but a lot of anger was directed at the idea that accused terrorists should receive real trials, with competent defenses, as well.Report
I think laypersons often misunderstand what being a lawyer is. A lawyer represents clients. That’s just the job. It is not a personal endorsement of anything any client has done or is alleged to have done, from the least sympathetic criminally accused to the biggest corporation to the most cynical plaintiff. Not that the bar and ever more irrelevant organizations like the ABA do us any favors by acting like becoming a lawyer is the equivalent of becoming a shock troop for whatever kind of activism is in vogue.
Anyway at a glance she seems like she has the resume of anyone else I’d expect to see of someone nominated for the federal judiciary. Absent some really unexpected out of left field personal issue that suggests she isn’t fit to be a judge in the first place I don’t see why she shouldn’t be confirmed. It’s a sad state of affairs that we are constantly creating these arguments, as if we don’t have enough to battle each other over as it is.Report
Some friction is unavoidable, because SCOTUS control is a very high-stakes thing.
But a lot of it shakes out from this weird bullshit kabuki where everybody pretends that the reasons they support or oppose nominees has nothing to do with partisanship or policy preferences, and that there’s some clear division between acceptable “balls and strikes” SCOTUSing and illegitimate “judicial activism”.Report
I certainly understand why it happens. I’m just tired of the farce.Report
The case that has shown up the most in my twitter circles is Ross v. Lockheed Martin.
The way the case has been spun so far was that Ketanji Jackson shot down a racial bias settlement and much speculation of her motives follow.
Josh Blackman at The Volokh Conspiracy (remember them?) points out that the letter that U.W. Clemon wrote to Biden urging him to *NOT* nominate KBJ happens to have been written by the guy who lost the aforementioned case. (Josh also breaks down how KBJ made the correct ruling.)
But emotions run high in these types of cases and it’s always weird to see who is lining up where.
But that case is the one that I’ve seen given as justification for why she shouldn’t have been nominated.Report
I really like VC… and Eugene in particular. I don’t always agree with what they write… and often times it goes way, way over my head… but I appreciate the writing for offering thoughtful and nuanced commentary.
Anyway, I’m curious about who is using that as a reason to oppose her.Report
Anyway, I’m curious about who is using that as a reason to oppose her.
“Identarians” might be the neutral term to use to describe them.Report
Not familiar with that term.
Either way, sounds like such folks are likely wrong to oppose her on those grounds, given what’s written in that post.Report
They’re also the folks most likely to find issue with her marriage. (She’s related, by marriage, to Paul Ryan. Yes. *THAT* Paul Ryan.)Report
What’s the issue with her marriage? Is it the Paul Ryan part? Meh.Report
I think it’s an issue adjacent to that.
Again, meh.
I didn’t see any criticisms of their marriage pop up on Google. Maybe it’s on The Twitters. Folks seriously oppose her appointment over that? Gollllllly!Report
I think it’s due to something about having an African-American woman on the Supreme Court was support for a very specific basket of political views.
The Ross case and her marriage indicate to these people that this very specific basket of political views is not held by Justice Jackson.Report
But when it’s Clarence and Virginia Thomas, those same people seem to have very little problem at all.Report
I admit to not pressing any of them on the Clarence Thomas question, but, as far as I can tell, they have a very specific term for Clarence Thomas that coincidentally riffs on his name.Report
Sexual harasser Tom?Report
So you’re thinking there’s a substantial Democratic constituency that would be happy to see a black woman on the Supreme Court, but for the fact that she has a white husband?
Do you have any evidence to support this suggestion?Report
Huh. I never used the word “substantial”.
I would have, instead, used the word “extant”.
Sort of like if someone ask “Has anybody seen *ANYONE* name a court case when complaining about Judge KBJ?” and I answer “I’ve seen people complaining about Ross v. Lockheed” and that suddenly turns into “Oh, so there are millions of people now rioting in the streets because of a case that was decided IN FAVOR of White Supremacy?!?!?”
My argument is not that there is a substantial Democratic constituency that would be happy to see a black woman on the Supreme Court but for the fact that she has a white husband.
My argument is, instead, that there is a group of people out there that has complained about how she ruled in Ross and this group has overlap with the group complaining that she isn’t what they were hoping for when they heard that Biden was nominating a Black woman.
If the argument is “that group of people is too small to matter much”, I guess I’d shrug in response.
If the argument is “so you’re saying X?”, odds are that I’m not.Report
““Oh, so there are millions of people now rioting in the streets because of a case that was decided IN FAVOR of White Supremacy?!?!?””
Where did it suddenly turn into this? I’m not seeing that.
“My argument is, instead, that there is a group of people out there that has complained about how she ruled in Ross and this group has overlap with the group complaining that she isn’t what they were hoping for when they heard that Biden was nominating a Black woman.”
There is always going to be people who are upset about something. The question is how legitimate their upset is and how substantial they are as a group. With regards to the Ross case, I can’t speak to how legitimate it is though the offered link seems to indicate she decided rightly on the legal merits. But the legal eagles can offer more.
As to the folks who are upset that she is not the “right” kind of Black woman because of who her husband is… well, I have yet to see any such people anywhere but if they do exist, well, there are people who think birds aren’t real. People have all kinds of wild ideas.
What I find interesting is you offer a case that folks objected to… no one here objected (that I saw… maybe I missed a comment)… and then pivoted to people objecting to her husband… which no one here argued.
It is again like you want to pick a fight that no one here is even aware is happening. Why?Report
Where did it suddenly turn into this? I’m not seeing that.
Oh, so now you’re saying that you don’t understand how someone sees restatement of the other person’s argument into a strawman is good?
There is always going to be people who are upset about something.
Yes.
The question is how legitimate their upset is and how substantial they are as a group.
I tend to see “legitimate” as one of those words that is a thumb on the scale. When *I* care about something, it’s legitimate. When you care about something, it’s nitpicking.
With regards to the Ross case, I can’t speak to how legitimate it is though the offered link seems to indicate she decided rightly on the legal merits. But the legal eagles can offer more.
If you were wondering “well, what are the complaints about this nominated justice that we might have to see?”, well, I have seen that case be named. I googled it. I linked to it. I linked to an essay critiquing the criticism of the case.
As to the folks who are upset that she is not the “right” kind of Black woman because of who her husband is… well, I have yet to see any such people anywhere but if they do exist, well, there are people who think birds aren’t real. People have all kinds of wild ideas.
Okay. Before I named the court case that I’ve seen people complaining about, had you heard of it?
What I find interesting is you offer a case that folks objected to… no one here objected (that I saw… maybe I missed a comment)… and then pivoted to people objecting to her husband… which no one here argued.
Do you remember saying this: “Anyway, I’m curious about who is using that as a reason to oppose her.”
If you do remember, would you see how talking about the people who are using that as a reason to oppose her would be relevant to the conversation?
It is again like you want to pick a fight that no one here is even aware is happening. Why?
I’m not picking a fight. I’m saying what I have seen.Report
Only you have seen these things.Report
How would you respond if I said some folks oppose her because she’s black? Or a woman?Report
How would you respond if I said some folks oppose her because she’s black? Or a woman?
I certainly wouldn’t ask if you were saying that you think that opposition to women was a good thing.Report
I *DID* link to some of them, Kazzy. They are there for you to look at as well.
If the argument is “those things that you claim to have seen do not exist”, then I will argue against that.
If the argument is “those things that you claim to have seen may exist but they do not matter”, then I will shrug. Sure.
If the argument is “so you’re saying X” and if X is something that I am *NOT* saying, then I will argue against that.Report
You linked to a piece addressing complaints about Ross v. Lockheed, but if you linked to any complaints about her marrying a white man, I’ve missed themReport
Would a handful of tweets suffice?
Or would that just turn into “okay, those people are complaining but you only linked to one person doing that. Link to three!”?
And then would that turn into “okay, you linked to three, but that doesn’t indicate that they’re representative of a larger group!”?
Because if that’s the path we’re fixing to follow, I’m fine with jumping to “but that doesn’t indicate that they’re representative of a larger group” right now and saving myself the headache.Report
I’d say one Tweet would suffice, because it would actually allow us to evaluate the argument, not just for goodness, but also for, you know, broader appeal and consistency with what you call “intersectionality” or her not having the right kind of lived experience as a black woman.
But, um, the Tweets you provided elsethread don’t mention her husband’s race at all, just his connection to Paul Ryan. This is already dumb AF, and bizarre enough to repel anyone but the most thoroughly brain-wormed partisans, but it’s a different kind of dumb AFness than, “It’s bad she married a white dude!”Report
You’re right. It’s not being upset that she’s married to a white dude, it’s that she has a connection through marriage to Paul Ryan.
Do I need to find people complaining about her connection to Paul Ryan through marriage to get to the “but they aren’t representative” part of the argument or can we jump straight to that?Report
I don’t think the argument over whether they’re representative is going to be interesting yet. Like, it’s early days and people have been focused on other shit (mostly Ukraine).
My take is it won’t become representative: the connection to Ryan is a funny factoid, but far too tenuous for any but the truly weird to find incriminating.
Many people have immediate family they disagree with on politics, much less brother-in-law-in-laws or whatever the hell that relationship is called.Report
I don’t think it’s going to be interesting either.
But it’s a hell of a lot more interesting than “well, *I* haven’t seen any… prove that they exist!”Report
In my experience, black men and women don’t complain when a black woman marries a white man, but black women hate white women who “steal” black men. This is not just my experience either, and it’s not something I noticed because I’m a racist. I’m a movie fan, and there was a scene where Denzel kissed a white woman that practically caused a riot in a test screening. I want to say it was “The Mighty Quinn”, and the version that finally made it to theaters had him rejecting the white woman. That story has stuck with me.Report
The problem, as I understand it, is not that she did, necessarily. It’s that she *WOULD*.
And the fact that she would indicates that the basket of political opinions that they were hoping she’d hold is not, in fact, there.
Whether or not that conclusion is justified is beyond me. Whether or not that basket of political opinions is a good basket is something I have an opinion on, but doesn’t seem terrifically relevant.Report
These people who you are discussing, do you…see them in the room right now?
Can we hear them speak for themselves, or do you need a Ouija board?Report
Chip, please understand: I am not one of the people who sees “Well, my experience doesn’t include your experiences” as a good argument.Report
My group of imaginary people is making arguments that make your imaginary people look ridiculous.Report
I’ve already provided some links, Chip. I’m hoping to avoid the “well, those people might *EXIST* but they aren’t *REPRESENTATIVE*” pivot.
Or, oh god, the “why do you follow people who would retweet those tweets into your timeline?” conversation.Report
Jaybirdhaters gonna Jaybirdhate. Provide the links, please.Report
sigh
So, hoping to avoid the “how dare you follow that person?!?!?” conversations, I figured I’d just search for “ketanji brown jackson marriage” and found a handful quickly.
The opposition to KBJ that we’re talking about can be seen in response to Cori Bush here:
Click on it and scroll down. Here are some excerpts:
I’ll grant: most of the people who are yelling at Cori are using that court case as a reason to oppose KBJ.
There. Three.Report
Eh, it sounds like it’s more the Ryan connection than the skin color. But also, how dare you follow that person?! (That was fun.)Report
The goodness of the basket is plausibly irrelevant to many conversations we might have, but I think specifying the contents of the basket would help pretty much any interesting discussion move forward.Report
You know how Biden thought that coming out and saying “my next nominee for the Supreme Court is going to be an African American woman!” was heralded as a good thing on the left? Maybe there were some grumblings here and there about how he should have said “I’m going to nominate someone awesome” and then nominated her but, for the most part, the response was positive?
Now imagine that his nominee was Janice Rogers Brown.
“Well, that’s not what I was hoping for”, I imagine you could imagine other people saying.
Because, I imagine, the hope is something like a judge who, similarly to Sotomayor, would use her lived experience as a way to interpret the law to the benefit of African-Americans and women and, especially, African-American women. A truly *INTERSECTIONAL* judge.
That’s what I imagine the contents of the basket would be.
And why they see Ross v. Lockheed (and her marriage, for that matter) as an indicator of holding the wrong basket.Report
OK but if it’s not a substantial constituency, who cares?
I’m not saying no one is arguing it—in a universe of Twitter hot takes and viral hate reads you can usually someone saying extremely dumb shit.
I’m asking why this particular bit of dumb shit is worthy of consideration and perhaps response.
I’m not discussing the Lockheed part because I think if it becomes an issue, it’ll be resolved quickly once the Dems find an appropriate outlet to present a defense.Report
I’m asking why this particular bit of dumb shit is worthy of consideration and perhaps response.
Because Kazzy said that he was curious as to who was using Ross v. Lockheed as a reason to oppose KBJ.Report
How does this even address Kazzy’s question?
So far you haven’t presented anyone who is bugged by Judge Jackson’s marriageReport
It addresses it by pointing out that the group of people most bothered by Ross are the same people who give a crap about her marriage.
“But the people who give a crap about her marriage are stupid!”
Okay. I am willing to agree with that.Report
It was just a very odd way to respond.
“Some people think this case is a reason to oppose her.”
I was sincerely curious where that opposition was coming from. Not doubting its existence, but wondering what and how they were objecting to it.
“The folks who object for that reason overlap with the folks who object to her marriage.”
Like, um, what? Why? How is that helpful to… anything?Report
Sigh.
“There are people who oppose her because of this case. They are stupid and feckless.”
Is that better?
I HAVE VERY STRONG OPINIONS ABOUT THE PEOPLE WHO HAVE STRONG OPINIONS ABOUT THIS CASE AND MY STRONG OPINIONS ARE THAT THESE PEOPLE ARE BADReport
Bully for you.
You are the one who brought up the case and now you are the one who seems upset it is being discussed.
WHAT WAS THE FISHIN’ POINT OF BRINGING UP THE CASE?!Report
Kazzy, we’re not discussing the case. We’re, instead, discussing *ME*.
“WHAT WAS THE FISHIN’ POINT OF BRINGING UP THE CASE?!”
Have you seen anyone argue that there are legit reasons to oppose the nomination of KBJ? Like, not just saying something like “she’s a judicial activist who will legislate from the bench” but “she ruled poorly in this particular case?”
Because, for what it’s worth, I have seen the argument that there are cases where she has ruled in such a way that is disqualifying. I posted it.
I also posted a criticism of this argument.
I think that the arguments that are somewhat more serious than “she’s female!” or “she’s black!” or “she’s nominated by a democrat!” are pretty much where the interesting arguments start.
And that’s why I brought up the case.Report
Kazzy, your mistake is assuming the existence of a point. You should know better by now.Report
“here’s the court case that I’ve seen given as a reason that she shouldn’t be the nominee and here’s a post arguing that that reason isn’t a good reason”
“WHAT’S YOUR POINT?!?”
“I guess I don’t have one beyond sharing the court case that I’ve seen given as a reason that she shouldn’t be the nominee and a post explaining that that isn’t a good reason.”Report
Which would all be very well if, after the meh response to what you now say was your “point,” you didn’t wander off into other, weirder precincts, and then back away when it didn’t work out.Report
The weirder places I wandered off into involved people asking about such things as “who would be using this court case as a reason?”
“Well, these people.”
WHAT’S YOUR POINT
“I don’t believe that those people exist.”
“Here are a few.”
WHAT’S YOUR POINT
And so on.Report
My sincere question received an insincere response. And off we went.
You shared an article defending her ruling to discuss people using that ruling to oppose her. I asked who was using the ruling to oppose her because, at that point, you didn’t indicate who they were.
Were they lawyers?
Politicians?
Liberals?
Conservatives?
Nutjobs?
You responded with a term I never heard of.
I inquired who THOSE folks were.
You brought up her marriage.
Do you really not see how you turned a conversation into a farce?Report
I assure you, my answer of “Identarians” might be the neutral term to use to describe them was sincere.
You responded with a term I never heard of.
I see.
You brought up her marriage.
Not exactly. I brought up the people who find her marriage to be relevant.
If your inclination was to say “but only dumb people would care about her marriage”, well, yeah.
You’ll be pleased to know that I agree.Report
You couldn’t have just said “Here are some of the people/groups objecting to her based on this case”?Report
No. He couldn’t have. He had to stir the pot when the initial post was a dud, and didn’t like the results, so he’s blaming everyone else.Report
Because, as far as I can tell, just knowing that it was a case of racial discrimination against a military contractor and the military contractor “won” and she was the judge would give me a broad outline of the people most likely be opposed to her based on this case and, checking the twitters, my immediate suspicions were pretty much confirmed.
I assumed that others would be able to perform the same mental gymnastics involved with asking “who would be upset at the outcome of a racial discrimination suit against a military contractor that was decided in favor of the contractor?”Report
As I Keep telling you – your assumptions and your approach aren’t how most of the regulars here think, and reinforcing your approach by doubling and trippling down on your approach when it doesn’t work out isn’t helping you any.Report
That’s fine. They don’t have to think like I do.
Hell, they can hold off on reaching conclusions until they know who is on what side before reaching a conclusion at all.
I should no more change how I think than they should change theirs.Report
So, again, your response was insincere.
Rather than answer the question, you assumed I knew the answer and began playing games.Report
That’s a huge mistake I made. I thought that the answer was so obvious that it never occurred to me that it wouldn’t be.Report
Note the “involved,” putting the responsibility on others. But who brought up KBJ’s marriage, prompting the ensuing weirdness? We can look up thread, you know.Report
I brought up the people who brought up KBJ’s marriage and see it as a red flag.
For the record, I am *NOT* someone who sees it as a red flag. But there are people who do. And there is overlap between those people and the people who believe that her judgment in Ross was bad have a lot of overlap with the people who see her marriage as a red flag.
Now you may say “I do not need to know those things, I do not need to know anything about her. I just need to know what Team Good thinks and then I can line up accordingly.”
Well, I should not be used as a bellwether of what Team Good is thinking. Either for or against.
But if you want to know what arguments there are out there that are not “OMG, a Democrat nominated a justice and she’s going to legislate from the bench!”, there you go.
Maybe you didn’t want to know that these arguments existed.
Sorry, I guess.Report
That’s the point. You brought it up, for whatever reasons, and the discussion went off the rails from there. The response to what you now claim to have been your point, that there’s this decision out there that some people don’t like and someone else says was correct was, for obvious reasons, tepid. The “legal eagles” didn’t weigh in because the decision wasn’t particularly interesting to anyone whose fee didn’t depend on it. That some people would look at the identity of the parties and the result and dislike it, and who those people would be, was sufficiently obvious not to merit discussion. Only the significance of these people in the larger scheme of things provoked any response at all. Then things got weird. But that’s on you.
As for me, personally, I already knew about the decision and the Volokh post defending it. But it was nice of you to bring the information forward to the rest of us, and had you left it at that and responded politely to the obvious follow-up questions, everything would have been fine. But that’s not how it works around here.Report
That some people would look at the identity of the parties and the result and dislike it, and who those people would be, was sufficiently obvious not to merit discussion.
You’d think.
As for me, personally, I already knew about the decision and the Volokh post defending it.
Oh, good. Well, I’m pleased to have been part of telling people things that you knew.
Thanks for being here to complain about me instead of telling us things that you knew.Report
Wait! CJ! There’s some information that you, a lawyer, can give us!
Tucker Carlson (Team Evil) is arguing that we need to know what KBJ’s LSAT scores were.
Tell us about the LSAT. Given what of her writings you’ve read, tell us whether you think she did better on her LSATs than you did.Report
The LSATs changed their scoring system years ago, and I wouldn’t know how to compare mine and hers if I knew hers. But my guess is that they would be about the same.
Carlson, of course, is an idiot, and his demand is contemptible, but we already knew that.Report
The scoring changed, did the test change?
How tough is the test? How tough was it to get into Harvard Law School in 1993?
Wait, 1993? Jeez louise, she’s practically my age.Report
The test is always changing. Whether it was easier or harder in 1993 than it was in 1978 I wouldn’t know. It was Damn hard to get into HLS both in KBJ’s day and mine, unless you already buy into the stereotype Tuckums is invoking.Report
But CJ, surely there are a lot of Democrats who are vitally concerned about what Tucker Carlson has to say about a nominee to the Supreme Court.Report
“He’s so obviously wrong that we don’t even need to address the arguments! Why, just look at who lined up where!”
“Like people are saying about Ross v. Lockheed Martin?”
“WHAT’S YOUR FREAKING POINT”Report
The whining gets old fast. Don’t start what you’re not willing to finish.Report
“I brought up the people who brought up KBJ’s marriage and see it as a red flag.”
No, you didn’t. You refused to identify those people until really, really pushed.
Instead, you brought up that “some people” object on certain grounds.
Going forward, I may just respond to any comment from you that starts with “Some people” with a link to that group of people who think birds are fake.
We’re back to ODRE.Report
Kazzy, thank you for so firmly establishing your position that we can declare arguments invalid when they’re made by Some Dudes On The Twitters, and that we don’t need to discuss the arguments themselves.Report
Given how long it took to get Jaybird to actually supply enough information to discuss an argument appears to many like that’s not what he wanted to do.
which is definitely his right on an internet forum, but not gonna help.Report
What’s the argument?
“I think that this case was decided correctly”?
Well, I supplied a link that explained that.
“I need to know who lined up where to know whether this case was decided correctly?”Report
““I need to know who lined up where to know whether this case was decided correctly?””
No.
“People are using this case to oppose her.”
“Which people?”
[An answer other than identifying who those people were]
If you aren’t making the argument yourself but instead are highlighting that the argument exists, asking you to identify who is making the argument seems reasonable. If that doesn’t seem reasonable to you, then there is no use engaging with you.
Again, you are asked simple questions and opt not to give simple answers. That’s on you. 10000% on you.Report
The issue isn’t where the conversation took place.
The issue is saying, “People say…”
and then when asked “What people?” going into some obtuse game rather than just identifying the people.
I explicitly asked which people Jaybird was refusing to and it took several posts for him to simply identify them.
So, it’s not that I’m not willing to engage with the argument… it’s that I’m not willing to engage with a commenter here who is deliberately obfuscating the conversation.Report
Kazzy, if you want to say that you don’t think that the objections to KBJ are coming from a group of people that you need to pay attention to, then I suppose I’d shrug in response.
Okay. Then don’t pay attention to them.
So, it’s not that I’m not willing to engage with the argument… it’s that I’m not willing to engage with a commenter here who is deliberately obfuscating the conversation.
Kazzy, my “argument”, such as it was, was “this is probably something that will bubble up in the coming days and you probably want to familiarize yourself with it”. There will be people using this as an argument for why she shouldn’t have been nominated.
Is that an interesting argument? I don’t particularly think so.
The counter-argument might be something like “I don’t think that that will come up.”
Okay. Maybe it will, maybe it won’t. Maybe the only arguments that we will see will be “But she’s Black!” and “But she’s a female!” and “But she’s a Black female!”
If so, easy peasy. I’m sure you don’t need help knowing who lines up where to know which side you want to be on for that argument.
If, however, you want to familiarize yourself with arguments that have just a little more substance than “she has physical traits!”, there you go.Report
I hope to live in a nation some day where a woman will not be judged by the color of her husband’s beard.Report
She is (I think I have this right) married to Ryan’s wife’s sister’s husband’s twin.Report
Legally their children could marry.Report
After a marathon courtship. You know, one that lasts almost three hours.Report
…and by proxy.
But the genetic confounder here is that the brother is a twin. But even there, I don’t think it’s significant.Report
And he’s her father’s brother’s uncle’s cousin’s former roommate!Report
My initial observation was that since her opinion was not appealed, its hard to believe it was outside of judicial norms. If the decision was that bad, there is a process (though not often effective for smaller cases).
But Clemon’s letter complains that she entered an order denying class certification, and waited 54 days to issue her full opinion, which “knowingly” frustrated the appeal rights of plaintiffs. This seems to raise the stakes a lot because Clemons is accusing Jackson of abuse of judicial process to shield her decision from review. Alternatively, the underlying assumption to this complaint is that plaintiffs’ attorneys blew an appeal deadline, committing malpractice.
I wouldn’t assume malice from judges for delays, and to the extent Clemons is complaining that counsel was lulled into waiting for the full opinion, ignorance of the law is no excuse.Report
I will defer to the much more legally-eagled among us.
I was just naming the case that I have seen brought up more than once that is attached to her name that is given as a reason that she shouldn’t be nominated.Report
Thanks for pointing that one out. I will be sure to review it in my longer analysis.Report
If you could only get one bad response on Twitter, either you have a very well-groomed set of followers or the terrorists thing is going nowhere.Report
I’ve read that she would be the first SCOTUS justice ever to have been a public defender. That’s exactly the kind of diversity we need on the Court. It’s too late for the 15th Amendment, but maybe she can help save the 4th.Report
IMHO, having time as a public defender, or even a criminal defense attorney, should be seen as so much of a positive that it’s practically an unwritten requirement.Report
From your lips to several million pairs of ears. But I don’t plan to hold my breath.Report
But criminal defense attorneys defend criminals!Report
Excellent piece. Thank you for sharing. And, thank you in advance for the more in depth analysis of her candidacy. This is one of those things where I’m a woefully ignorant layperson, so I really rely on the experts to make sense of it.Report
Great piece.Report
Yea… no. You’re just… wrong.
From their site:
“Not the Bee is a humor-based news, opinion, and entertainment site from the creators of The Babylon Bee and Disrn. Like the name suggests, it’ll feature some absurd and hilarious (but real) news that seems like it should definitely be satire.”
They’re not competitors and they do very much mean what they write.Report
Thanks so much for doing this kind of thing, Em. And for this piece specifically.Report
Public defenders ought not need any defense of any sort, not a moral one, not an ethical one, not a systemic one. Lawyers are not their clients.
Kentaji Brown Jackson was assigned to defend suspected 9/11 terrorists, which indicates that someone on the bench thought she has a very high level of legal skill because they weren’t giving those kinds of assignments out to first-year-after-the-bar public defenders.
And perhaps more to the point — what happens if there aren’t qualified public defenders out there to step up to the plate and represent accused criminals? The accused criminals get set free. That’s what’s going on right here in Oregon — felony charges are getting dismissed because the existing public defense system is inadequate to take on the representation of the accused. The next time someone challenges the morality or justice of “trying to set criminals free,” it might be worth it to point out that if the legal system fails to defend the indigent, the accused go free automatically.Report
Seems in line with the claim that if some small percentage of people stopped taking plea deals, the system would grind to a halt.Report
Experience demonstrates that this aphorism is correct! Starting in 2005, the District Attorney of Riverside County, California adopted an anti-plea bargain policy for “serious” felonies and the system began to drag almost immediately. By 2008, when the linked article was written, the effects had become famous throughout California’s bench and its bar, with spillover effects that I felt in my civil practice. If felony trials weren’t going out within 12 months per the Supreme Court’s “rocket docket” mandates, my civil disputes sure as shit weren’t. Which meant defense settlement dollars tightened up real good.Report
It would be interesting to see a retrospective on Barrett.Report
in what way?Report
Maybe we can get her LSAT scores.Report
Do you think that hers were better or worse than your own? (Note: She only went to Notre Dame but was ranked first in her class so it might balance out.)Report
Again, I’d guess they were comparable. Math, mainly. They couldn’t be much higher, and I doubt they were significantly lower. I think she probably did get into, or could have gotten into, more selective schools but made a deliberate choice to go where she went.
But, of course, nobody asked for them, which is kind of the point.Report
@Jaybird:
“He’s so obviously wrong that we don’t even need to address the arguments! Why, just look at who lined up where!”
“Like people are saying about Ross v. Lockheed Martin?”
“WHAT’S YOUR FREAKING POINT”
Who said we didn’t need to address the argument about Ross v. Lockheed Martin?
The first comment that mentioned the case–yours–also linked to an article that addressed the decision pretty thoroughly, and PD Shaw addressed it further.
So people here are willing to engage you on stuff that has even a little substance.
But I’m not sure what that has to do with Carlson’s shitbirdery.Report
His shitbirdery is going to result in stuff like people wanting to know more about the LSAT (something that is rare enough that only a handful of people even know what it is, let alone have taken it) and think that asking what her score was is a reasonable question to ask of a Supreme Court Justice despite this question not having been asked of the last dozen or so Justices.
Well, I assume that none of the last dozen or so Justices have been asked this.
So, assuming that none of them have been asked this, we get to ask “what makes *THIS* different?”
For what it’s worth, I think that the assumption that he’s only asking because she’s Black is a fair enough question to ask people to come up with a better explanation.
As far as I can tell, Harvard Law School is one of the two schools that makes Supreme Court Justices anymore… oh, wait. Amy Coney Barrett only went to Notre Dame. Surprised she made the cut. (Probably because she was a woman.)
Anyway, Harvard is one of the good law schools. Jackson graduated cum laude which puts her in the top half of her graduating class.
I’m pretty sure that arguing that “well, it should have been summa or magna!” can be waved away.
For what it’s worth, I’m pretty sure that she’s established herself as having cleared the bar. I would like to read more of her stuff, but I admit that my opinion on legal writing has been prejudiced by reading a lot of Scalia (who was exceptionally readable).
What cases of hers do you recommend for a layperson?Report
“(Probably because she was a woman.)”
Heh, yeah, that was totally the reason.Report
Does anyone doubt that the reason we tumbled down yet another stupid Jaybird rabbit hole was because he wanted to make the point that some Black Americans don’t think KBJ is Black enough and/or the right kind of Black but wasn’t willing to just come out and say that? I mean, is there any other reason he’d take the tack that he did?Report
I’d say more broadly it happened because of the weird obsession with Jaybird around here. Everyone has a lousy take every once in a while; this was his. It took me about two exchanged comments to figure that out, and I didn’t even have to flail my arms in concern. I’ve been having a pretty interesting past 24 hours not thinking about that take at all.Report
Kazzy, any (AND I MEAN *ANY*) African-American capable of swimming in the waters that lead to the Supreme Court will be accused by some African-Americans of not being Black enough and/or the right kind of Black. That’s not particularly interesting.
What’s the justification that they might use for making that argument above and beyond “Going to Harvard indicates privilege”?
Well, I linked to the case that would be used. I linked to a post debunking it.
I don’t want to say that the fact that she’s Black is uninteresting, because it *IS* interesting. But if it’s interesting in the good way, we open the door to counter-arguments about how it’s interesting in the bad way. And not merely from Tucker Carlson types (who, I’m sure you’ll agree, are easy to figure out who lines up where in those arguments).
I’d rather talk about the case that people will use to argue that her color is interesting in the bad way and point out that there are legal eagles who think that the case is not a good reason to oppose her nomination. Cut that off before it comes up.Report
Yawn.Report
You yawn, but you made just as bad an assertion that any black woman nominee would be criticized for her “qualifications”. Worse, I think, because JB’s path isn’t foundational to his beliefs, but I’m guessing yours is.Report
So attacking me for owning a belief was okay.
Asking Jaybird to clarify an argument he may or may not even believe in is poor form.
Got it.
Some are here to discuss and engage. Others to play games.
If Jaybird felt his argument fell flat, he could have apologized and walked it back. But this wasn’t a bad moment. It was the status quo from a bad faith member of this community who’s bullcrap is tolerated for reasons unknown.Report
I don’t understand why it matters what I believe.
I’m just this guy.
When it comes to what I believe, personally, I believe that there was a minor kerfuffle about KBJ and it involved a racial discrimination suit against a military contractor and she was the judge for it and found for the military contractor.
A handful of people out there believe that this case was decided incorrectly and one of them was important enough to be noticed when he wrote an open letter to Biden saying “Whomever you nominate, don’t let it be KBJ”.
I think that that is interesting.
One of the writers at the Volokh Conspiracy wrote about this and said “this guy isn’t making a good argument and, on top of that, is in a conflict of interest because he lost the case in question.”
I think that that is interesting.
“Who is going to be using this case to argue against KBJ?”
I don’t think that that is interesting.
What do *I* think? I think that, on the legal question, I ought to defer to the lawyer types and, if that’s not available right away, looking at stuff like “was this appealed?” will do in a pinch.
I’m looking forward to a legal person actually reading the case and saying “Yeah, this was decided correctly” or “You know, there are a couple of things in here that feel like shenanigans and I don’t know why the judge let these shenanigans happen.”
And when a legal type reads the case and gives a small write up, I think that *THAT* will be interesting. In the meantime, I guess, I have the Volokh Conspiracy. Who are pretty good, I guess, but they’re also writing at Reason which is the definition of a biased source.Report
OK. I read the case. I think it was decided correctly, or, at least, was well within the lines of defensible decisions. But it is next to impossible to make it interesting.
Courts have to sign off on settlements of proposed class actions, assuring themselves that the case is appropriate for class action status and that the proposed settlement is fair. Among the things the judge has to look at are whether the named plaintiffs and the proposed class members have similar enough interests and claims to try the case as a class, whether there are likely to be separate and individual defenses. You can’t just throw together about 5,500 plaintiffs who are all claiming some kind of discrimination unless there is sufficient commonality in the claims and defenses.
The typical class action is litigated for some time before there is a proposed settlement, or even a certified class, so the judge usually has enough knowledge to make that determination.
Then, assuming a class is certified, the judge has to determine whether it is fair to the class.
This case, however, was a “settlement class” case, essentially a prepackaged settlement of a defined class of claims. They are becoming more common and present problems to judges, who are asked to approve a class and a settlement in one fell swoop without much familiarity with the case. Busy judges can be tempted to sign off on them without a rigorous analysis of whether the case is appropriate for class treatment and whether it is fair.
In this case, the class would be waiving any discrimination claims of any type against Boeing. This is an extremely broad description of the claims, and gives the class members no real guidance about what they’re giving up. Discrimination cases are usually fit for class treatment when there is some specific, company-wide policy or practice that is being challenged, rather than the individual acts of individual bigots, but there was no adequate description of such a policy or practice.
As for fairness, the class would be dividing $22-odd million (minus fees and expenses) in an unspecified way among 5,500 or so plaintiffs. Do the math; it’s about $4,000 per class member. A meritorious individual discrimination case is usually worth far more than that.
KBJ wrote a very clear and thorough opinion, covering all the bases and taking seriously all the factors she was supposed to consider. She spotted some real problems with the class and claim definitions and the overall fairness of the case. As a result, the plaintiff’s lawyer is out of a fee, and, understandably, angry. I think she got it right, but even judges or class action experts who might have, ultimately, come out the other way, would agree that the decision is within the realm of reasonable outcomes. But it couldn’t be described as “interesting” except to civil procedure teachers — a strange group, which used to include my former civil procedure teacher, RBG herself. I don’t think I can make it interesting either, but I hope I made it reasonably clear.Report
I think it was decided correctly, or, at least, was well within the lines of defensible decisions.
Oooh, thank you. This is good and I’ll take your word for it.
KBJ wrote a very clear and thorough opinion, covering all the bases and taking seriously all the factors she was supposed to consider. She spotted some real problems with the class and claim definitions and the overall fairness of the case. As a result, the plaintiff’s lawyer is out of a fee, and, understandably, angry. I think she got it right, but even judges or class action experts who might have, ultimately, come out the other way, would agree that the decision is within the realm of reasonable outcomes. But it couldn’t be described as “interesting” except to civil procedure teachers — a strange group, which used to include my former civil procedure teacher, RBG herself. I don’t think I can make it interesting either, but I hope I made it reasonably clear.
Clear enough that I think I understand it enough to explain it to someone else (before telling them to read it from the horse’s mouth).
Again: Thank you.Report
Good takes. I would simply add as a point of emphasis that the certification of this class posed the most potential harm to those with the strongest, largest discrimination claims. And I didn’t see any reason denial of the class would preclude individual race discrimination claims.Report
This is where I (again) call BS.
You say you want a lawyer’s take on the case.
Were any of the people using it to oppose her lawyers? See how who they were matters? If they were lawyers, that’d matter. If they weren’t, that’d be good to know.
You *HAD* a lawyer’s take. You had a damned good analysis at VC. Only you are suggesting they’re biased. I even went so far as to compliment them as a resource.
So, no, you didn’t want to discuss the case. You wanted to take potshots at folks whom you thought were dumb for using the case against her. Because you already knew that their opposition was based in more than a legal analysis of their rulings.
So, stop with the BS.Report
“Were any of the people using it to oppose her lawyers? See how who they were matters? If they were lawyers, that’d matter. If they weren’t, that’d be good to know.”
so…
you can only have opinions about the civil-rights implications of a legal decision if you’re a lawyer?Report
FFS, Jay wanted a lawyer’s take.
Jay had a lawyer’s take.
Jay decided to discuss — without cite — non-lawyer takes.
Why?Report
No, but there’s a good chance you’ll be wrong about something, usually something procedural. As seems to have been the case here. By all means express what lay opinions you may have. It’s still a more-or-less free country. But be prepared to have your opinions discounted if you don’t know your stuff. Not everybody deserves a full-blown argument on the merits.Report
Let me know when you want to go up to an angry black woman and explain to her that she lost her racial-discrimination case because she was wrong about something procedural and that she doesn’t deserve a full-blown argument. I’d like to watch.Report
I like to watch, too. Just not stuff like that.
For what it’s worth, I’ve beaten angry black women (and their lawyers) who brought discrimination cases. I don’t spike the ball.Report
And further evidenced by your responses…
Identarians, Wiki tells me, were basically a far-right white/European supremacy movement.
What’s that got to do with the folks you eventually cited?Report
Oh, I wasn’t using it like that!
I was using it as a way to describe people for whom personal traits take priority.
As I understand the term, it certainly includes white supremacists but is not exclusive to them.Report
Were any of the people using it to oppose her lawyers? See how who they were matters? If they were lawyers, that’d matter. If they weren’t, that’d be good to know.
I know that the guy who wrote the original letter was a lawyer but I don’t know whether any of the people pointing to his letter were lawyers. I’ve no reason to believe that any of them were. (But, of course, one or two of them may have been. You never know.)
You *HAD* a lawyer’s take. You had a damned good analysis at VC.
Published by Reason Magazine.
You wanted to take potshots at folks whom you thought were dumb for using the case against her.
It’s not that I thought that they were “dumb” but that they were “bad”.Report
So why not just come out and say, “A bunch of bad people think we should oppose her because of this case. How bad they are!”Report
Because that’s not signal at that point. It’s only protocol mimicking signal.Report
English please.Report
It’s not saying “Those bad people are bad”. It’s saying “I am among those who think those people are bad”.
I don’t think that statements about “me” are interesting statements. Certainly when *I* am the one who makes them.
I’d rather get to “here’s the argument… does it make sense?” along with a handful of “what are the arguments against this argument? And I don’t only want to read paraphrases of the counterargument made by the people who made the original argument”.
I mean, you’re only rarely going to get a decent paraphrase of the counterargument made by the person who made the argument.
And *THEN* you can reach a conclusion.
And it’s at that point that “here’s the conclusion that somebody else reached” might start being interesting. Especially if you know how and why they did what they did.Report
So you wanted to make hay of the arguments for and against her ruling in that case but only shared links to one side of the argument?
Going forward, why not just link to the case and say, “Seems like her ruling here is a point of contention. Can any lawyers weigh in?”
Or
“Some folks argue she ruled correctly here [links]. Some argued she didn’t and this should disqualify her [links]. Curious to dig into this.”
Instead, you went…
“Here is a lawyer discussing one of her rulings [link]. SOME PEOPLE use this very case to attack her.”
“What people?”
“YOU KNOW…”
“I don’t…”
“YES YOU DO…”
Like, you can see how you 10000% made yourself the issue there and not the case and the arguments surrounding it.
You clearly had feelings on the people using that ruling against her and rather than just own them, you took your weird, pointless, needlessly derailing jaunt. And here we are…Report
So you wanted to make hay of the arguments for and against her ruling in that case but only shared links to one side of the argument?
Kazzy, the VC linked to the open letter to Joe Biden about why he shouldn’t nominate KBJ.
I do think that if you have a handful of misgivings about her, you are more than welcome to post your own reasons why she shouldn’t be invited to the Supreme Court.
Honestly, I’d be interested in reading them.Report
I’ve got no misgivings.
I didn’t click every link in the VC article. Maybe you could have mentioned that 100 comments ago.
Jaybird: [makes things needlessly difficult] “Why is everyone making this so difficult?!”
When I asked who was using the case against her, you could have easily shared a link or two. You chose not to. For reasons that remain unclear.Report
Because I thought that some people would look at the identity of the parties and the result and dislike it, and who those people would be, was sufficiently obvious.Report
Yes when we look at the identities of who is speaking, their history and known loyalties and biases, the meaning becomes blindingly obvious, which everyone on this thread knew this right from the start.
The only thing which is mysterious is why you seem to think no one knows this.Report
Everyone? You’d think.Report
“So attacking me for owning a belief was okay.”
Congratulating you on admitting you were wrong would be even better. We haven’t gotten into the full swing of the nomination, but early evidence isn’t on your side.
“Asking Jaybird to clarify an argument he may or may not even believe in is poor form.”
Knock yourself out, but when you’re done, I mean, do you think this is going anywhere?Report
I was wrong. The response from the right was not what I expected. We’ll see what happens when the hearings begin, but outside professional a-holes like Tucker Carlson, I probably won’t see what I said we’d see.
I apologize for wrongly and unfairly smearing folks on the right with my prediction of their responde.Report
Thanks.Report
Many things about your life are being made understandable by your behavior here.Report
Please… enlighten me.Report
Like I’ve said before, Jaybird’s favorite method of discourse amounts to anti-communication.
Including the fact that if it intersects communication, it explodes and destroys it.Report
It depends on what your goal is.
If you are searching for a safe consensus to be in the middle of until the consensus changes? Yeah. I’ll probably fight against that. That ain’t *MY* goal.
Though, occasionally, I won’t mind pointing out the consensus when it happens to wander toward what I think is right.Report
I dunno, man. I think it’s a lot easier to fight against a safe consensus if you actually clearly identify that consensus.Report
The safe consensus isn’t the problem. It’s the search to be in the middle of it.Report
Who here is searching for the middle of the safe consensus on KBJ?Report
Oh, nobody, I’m sure. I’m pretty sure that everybody knows that the good position is to support her.
Just look at who is opposed! It’s mostly Tucker Carlson and his ilk.Report
So you aren’t interested in fighting the safe consensus, and the search for that safe consensus that you are interested in fighting isn’t happening?
I admit to being a touch puzzled by what you’re trying to accomplish.Report
In this particular case, I found an argument to oppose KBJ that wasn’t “she’s Black” or “she’s female” and I found that much more interesting than the “she’s Black” and “she’s female” arguments that we will not see anybody here talk about except for reasons to mock the people who make them.Report
– and your style is grousing about other commenters (but mostly Jaybird) then saying the site has gone downhill. And my style is predictably complaining about liberal commenters’ predictability (but mostly, I hope, the wrongness of their viewpoints).Report
Do you see me making up 80% of a comment threat, dedicated entirely to derailing conversations between other people?
I rarely post at all.Report
I think that’s what makes it stand out. You see old-timers all the time talking about how things were better in the old days. It’s just odd from an infrequent commenter. For my part, I’ve become a fan of the “ignore” X that you can click next to a name. I don’t use it often but it saves clutter.Report
I’ve been thinking about this some more and it’s not exactly this.
Are you familiar with CRT? It’s an obscure legal theory from the 1970s. According to Richard Delgado, It questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.
So, like, looking at the original case through the prism of CRT, the question isn’t only one of “calling balls and/or strikes” but critically examining the law to show, first, that it maintains white supremacy, white power, and enforces societal or structural racism; and, second, that transforming the relationship between law and racial power, and also achieving racial emancipation and anti-subordination more broadly, is possible.
So, through that prism, you can look at the racial discrimination case brought against a military contractor and ask “What would CRT indicate a judge should do?”
There are a handful of vague guesses you might make and then compare those guesses to what KBJ did.
It’s easy to see that what KBJ did was relatively dull. She called balls and/or strikes. She did *NOT* transform the relationship between law and racial power, or move the ball toward achieving racial emancipation and anti-subordination more broadly.
There are people who were delighted to hear that Joe Biden was going to nominate an African-American female because they were hoping that she would also have a basket of various beliefs and inclinations to go along with her personal history/experience. This case is a flag that says “She will, instead, call balls and/or strikes”.
For what it’s worth, she strikes me as a good person to have nominated. She’s got experience in the Public Defender’s office (we’ve never had one of those in the Supreme Court) and the cases of hers that I’ve heard about show that she calls balls and/or strikes. Hell, she even graduated cum laude from Harvard Law School.
What’s not to like?Report
Both things can be true at once. A critical analysis of the law will indeed show much of what the CRT folk say it does. And it is naive to think that judges ONLY call balls and strikes and even their ball and strike calls are subtly, even sometimes unconsciously, influenced by the sorts of considerations CRT folk point to. But that doesn’t amount to an account of judging practice. I can’t stand in front of a judge and point out the deeply ingrained racism of the law. The judge will want to know whether the law as it is, warts and all, permits him or her to do what I want done. CRT folk are right to be skeptical that orthodox legal argument will be what causes judges to cut the gordian knot. It is just silly to suggest that Plessy could have turned out any other way back when and Brown became possible later not because some clever lawyer found the logical flaw in Plessy that someone else had missed, but because the sorts of people who became judges could now imagine something different. But lawyers still have to put their arguments in recognizably legal forms, and judges have to be able to reach where they want to go by writing opinions that make law-like noises, which limits how far progress can be made through litigation. Any broader attack on the inequities in the law will have to be fought in other forums.Report
You’re too nice about the CRT silliness. I’m not reading the decision in full but looking at your take and the VC take it strikes me as a good example of why that kind of approach is just plain old bad law. The result would have been small windfalls for randos without a claim and potentially cutting off recovery for people who suffered serious harm. Which is kind of a broader problem with class actions to begin with but whatever. The firm makes bank and throws some pennies to people who didn’t even know they were wronged in the first place.
Having spent more time than I like to discuss trying to avoid big TCPA suits I have my biases against the class action bar. Nevertheless I can begrudgingly admit they can serve a purpose. It just isn’t a purpose remotely related to correcting the sorts of big but nebulous social problems academics obsess over.
Not that any of this really matters anyway. Unless a Senate Democrat raises this issue, and I can’t imagine any will, then it is a complete non issue.Report
I consider all the objections I’ve seen to Jackson to be fundraising.Report
I agree. As I said up top, absent something really unexpected and huge that was somehow missed in multiple previous vettings, I see no legitimate reason to oppose her. That some will says more about them than her.Report
I admit to being amazed at how there seems to be virtually no opposition whatsoever. Skimming across the usual suspect outlets, I don’t see any mention at all of her nomination, compared to say, Sotomayor’s.
Is it the war consuming all the media oxygen? The lack of funds from Russia shutting down the disinformation outlets? Hard to tell.Report
Sotomayor was a uniquely bad choice, though. IIRC she never had a reputation for smarts, and made those “wise Latina” statements. Liberals on the Court will sometimes side with the conservatives, but she’s the least likely to do so; I’ve seen measures that put her more liberal than Thomas is conservative (insert obvious caveats about those terms in this context). Kagan got fewer Republican votes, but I think she was more feared because she’s smarter.Report
This is pretty insightful.
For what it’s worth, the person who wrote the open letter to Biden saying “don’t nominate KBJ!” was the first non-fundraising opposition to her that I’d seen.Report
@Jaybird:
I’d rather get to “here’s the argument… does it make sense?” along with a handful of “what are the arguments against this argument? And I don’t only want to read paraphrases of the counterargument made by the people who made the original argument”.
Yeah, but you didn’t present that argument. You presented the original argument, about the Boeing decision, alongside a refutation of it, which is fine. There was some discussion of it and that was cool.
Then you said that picture of her with her husband might cause problems. After some prodding you suggested some people [1] would be bothered by a black woman marrying a white man, and after more prodding, you embedded some tweets from people who were because she married that because he was sorta related to Paul Ryan, not because he was white.
If you had led with the tweets right out the gate, well, I doubt the conversation would have been much more interesting, but it would have been shorter and less confusing. You could have avoided questions about whether the tweeters represent a meaningful constituency by asking if their argument is likely to appeal to a meaningful constituency, even if it has yet to reach one.
[1] Presumably Leftwards and/or Democrats, not crypto-white nationalists who take Tucker Carlson seriously.Report
Then you said that picture of her with her husband might cause problems.
No. I said that the people who would have a problem with her marriage have a lot of overlap with the people who think that the Ross case was wrongly decided.
It’s because, and I said this, that the hope was that when Biden nominated an African-American woman, he’d nominate one that has a particular basket of beliefs.
Like if he nominated Janice Rogers Brown, people would say “Wait, not *THAT* African-American woman!”
Right? You agree that JRB is *NOT* who you would be hoping for if Biden nominated her? Despite the whole “African-American woman” thing?
Well, there are people out there who think that KBJ does not have this basket of beliefs. And they point to her marriage and the Ross case as reasons to think this.Report