"Language matters. The framing of issues matters. And it is amazing to see that Sonia Sotomayor is going to start reframing how we discuss and debate these types of issues, one pen stroke at a time."
Hear, hear. Well said.
And this, my friends, is why diversity matters. Why had it not occurred to the other Justices to rethink their use of language in matters like this? Sotomayor's background does make a difference, not to the law itself, but in how the law is interpreted, expressed, and applied to people's lives.
My hatred for Thomas and Scalia is so wide-reaching that it could be turned into a book. Seriously.
Also, for anyone interested, The Nine by Jeffery Toobin creates a pretty damning portrait of Thomas.
I detest Scalia, but I'll admit to him being intelligent and well-acquainted with the law. I just never agree with him. My issue is that he decides his opinion about a case and then back-tracks his way to justify it in his decisions--when it should be the other way around. Thomas just seems perpetually out of his league when he's on the bench.
@Tchotchke: I feel the same way. However, Scalia & Justice Ginsburg are purportedly good friends, and a good friend of RBG is a good friend of mine, so I find it difficult to dismiss him entirely, though every. single. brain cell. urges me too.
@Tchotchke: Really? I thought The Nine added a human element to him – the part where had a picture on his desk of a female law clerk’s partner. Even more surprising that she wasn’t even one of his clerks.
@TubOfTaft: I thought the book made it pretty clear that he was in over his head as far as being a Justice is concerned. Also, it pointed out that his anti-affirmative action convictions are a cut-and-dry case of pulling the ladder up behind him, as he's arguably the clearest example of someone chosen to meet a quota. The book also made it pretty clear that the allegations of sexual harrassment at the confirmation hearings were true, but that the Democrats didn't want the fight that contesting his nomination would entail.
But I agree, the struggles he overcame and the anecdote about the photo were definitely redeeming moments for me.
@burningdinner: I like to rationalize that their friendship is based on both being New Yorkers and opera afficionados. But I still loathe his opinions and his demeanor.
@Tchotchke: Oh, yeah, I definitely agree with the rest of the stuff you said about him. That part just struck me as something I'd never expect from him. That's all :)
@Tchotchke: I agree-- I'm usually outraged about Scalia's opinions, but at least they're entertaining and he knows how to make his argument. Thomas is a complete waste of space. Hasn't he asked maybe only two or three questions total in oral arguments in the past few years? I'm so glad Sotomayor managed to piss him off already. I'm surprised he even noticed she was there.
@ytuhermanotambien: I recall hearing that his entire first year on the bench, he was mute and wrote only one opinion. Apparently, legal analysts and journalists harped on this a lot in those days. Maybe someone else has a better recollection though? I'm a little fuzzy on this one.
Also, I forget which case it was, (the name escapes me but it was a strip club in Kansas that wanted to have strippers without pasties--a violation of local obscenity laws) but Scalia made a comment about 10,000 people being naked in the Hoosier Dome, and then Ginsberg and Sandra Day O'Connor kept his analogy in their rebuttal of his argument. The number of times "nipples," "pasties," and "nudity" appeared in the Supreme Court tanscripts was astounding and wildly amusing.
@ytuhermanotambien: Oh!!! I forgot the best part! One of the male Justices didn't know what pasties were, so one of the other Justices had to explain it...In court.
@Tchotchke: I don't believe Thomas has ever asked a question from the bench in all his years. (If that's who you're referring to). That may not be correct, but if he has, the instances can be easily counted, which is evidence of a lack of inquisitiveness. I can't fathom that being a quality of one of our top justices, but it is.
@Tchotchke: You know, I am not a Nino fan, either, but about 5 years ago he radically changed the way I practice law for the better.
I never thought I'd see Scalia come down on the side of criminal defendants and then he wrote opinions that re-invigorated the 6th Amendment's right to confrontation. Amazing!
@Maritsa: It seems that the pic that's up there now is different from the one that was up earlier, which had Sotomayor smiling uncomfortably, Scalia with a fake smile with a sort of slack-jaw, and Thomas glowering. It was awesome.
@Maritsa: Yeah, I figured you were referring to the original photo, since the one that's up now isn't that bad. I put the explanation up for people reading who may have missed the first photo, since otherwise my other comment might not make much sense. :)
It baffles me when people say "illegal immigrant," because they have no idea what that means. It seems to me if you don't know the in's and out's of immigration law, you should have nothing to say on the subject. Thus, I applaud Sotomayor, not for political correctness, but for correctness, as it is so often that an undocumented immigrant either entered legally (with inspection) or has proper legal relief even if they entered without inspection. Because Puerto Ricans may legally work in the United States and are often mistakenly referred to as "illegal immigrants" because they are Hispanic, I am sure she is aware of the stigma this term places when used in our society, and am thrilled that she has chosen her words "wisely."
@DutchessOfDork: I do think her experience as a district court judge makes her assessment of the situation doubly valuable. She might have made a value judgment; but they all do and at least her judgment was based on pragmatic experience and the law.
@Trulymadlyme: Of course. She's a smart and pragmatic woman, who looks at the law and interprets it like the rest of them. Thomas needs a wag of the finger!
"Value judgment" must be slang for "Women! They cry all the time and aren't logical!" Because that's definitely how I read it, considering that the Supreme Court has been inserting personal policy preferences into their decisions for, I don't know, OVER TWO HUNDRED YEARS.
@Kitten is an 80s rocker: I don't think it is a matter of her gender, but rather an issue of her political sympathies. Clarence Thomas's record indicates that he--much like Alito, Scalia and Roberts--is unabashedly partisan. For him, it must be painful to agree with the decision of liberal justices, and so, he decided to be a jackass and make his feelings known. I'm only surprised that Scalia wasn't the one writing a separate opinion; he loves tussling with Ginsberg et al. Plus, he's a monumental prick.
@Tchotchke: So maybe "value judgment" really means "Pot-smoking, pinko commie liberals!"? I'm not too hip with the slang the kids are using these days. Either way, I'm going to hate all over him.
Hey lawyer types out there in Jezzie land - when the vote is unanimous, does someone have to write an opposing opinion or is Thomas just being a jackass?
@kkatt: They don't have to. However, if a particular Justice believes that the decision is correct, but disagrees with the opinion written by another Justice, they are entitled to write another one. In other words, Thomas is just being an ass.
@kkatt: he just wrote a concurring opinion. It's basically a way to let a justice who agrees with the end, but not necessarily the means, to express his/her opinion.
Generally, concurrences are just a vehicle for jackass-ery. The problem is that even though the majority opinion is 'the law,' the lower courts may prefer to use the concurring opinion's rationale to justify certain rulings, leading to disagreements amongst the lower courts.
@kkatt: He was just writing a concurrence - essentially explaining his reasons for agreeing with the opinion. So it's actually doubly assy that he called her out.
@kkatt: I don't believe dissenting opinions are required if the full panel is in agreement. Usually, though, Justices will write their own concurring or dissenting opinions to address specific aspects of the decision in greater detail or make additional points regarding the case.In this case, though, it sounds like Thomas wrote a concurring-in-part opinion just to take a piss.
@Trulymadlyme: I dunno, Stevens has written some pretty florid prose. Admittedly, he leans left, so I tend to appreciate it more from him then Scalia, but goofy concurrences and charged writing aren't the exclusive domain of the right wing of the bench.
(I know you weren't arguing that it was exclusively Scalia, but this thread has had a bit of pile-on against the conservative wing of the bench, and it seemed important to note that the lefties sometimes take the piss a bit as well.)
only tangentially related: I don't know that I've ever referred to a document from the Supreme Court as 'goofy' before. That may come back to bite me eventually.
@Cardbross: Oh, I think Stevens can be florid, but his opinions and dissents usually lack the rhetoric knife jabs found in Scalia and Thomas' opinions.
Then again, I'm more fond of O'Connor because she is all about five parts tests and very helpful to establishing precedent that can actually be used by trial judges. But then again, she was one, too.
I seriously doubt the mess that is Iqbal would have been created if there were justices with trial court experience. The fetishization of the court of appeals as feeder grounds for the supreme court is troubling and has created this bizarre echo chamber where opinions are issued that don't work in a pragmatic sense.
How are undocumented immigrants not illegal? As someone who has gone through the immigration process legally (which is a time consuming and costly process), I find it a bit insulting that the people that are here illegally should not be considered illegal.
@thePrototype: It's not that they're not breaking the law. It's the fact that a lot of people in the media and, subsequently, around the nation use the term "illegal" or "alien" to make it sound like immigrants aren't, you know...people. It's a lot easier to treat an alien like shit than a person.
This also trickles down, meaning that a lot of people who are here legally or born in the US are treated poorly. My stepfather was born here and speaks next to no Spanish, but he's still been subject to racism and screamed at to, "Go back to Mexico" because he's Mexican-American.
@thePrototype: Personally, I can't stand the term "illegal immigrant". Being here without proper documentation is a civil offense, not a crime. I can't fathom calling someone "illegal," for any other civil or criminal offense.
@thePrototype: It's a matter of humanizing those people in this country who have not been fortunate enough to secure proper documentation. I applaud Sotomayor for reframing the discussion. The term "illegal alien" is degrading, one that has been refuted since at least the 1970s (see image).
@EkaterinaBallerina: Yeah, but "These Violators of Administrative Regulations are here to steal our jobs, rape our women, and give us leperosy!" just doesn't have the same ring, now does it?
@EkaterinaBallerina: well..."illegal" really just means outside of the bounds of law. whether you violate a civil law or a criminal code, the act is really still "illegal".
@thePrototype: I'm with you on the phrase "illegal immigrants." I do find "aliens" and just plain "illegals" to be extremely pejorative (and newspapers use "illegals" in headlines? Seriously? That is gross.) "Immigrants who entered the country illegally" is certainly preferable, because of the "person-first" idea, but it is also unwieldy.
@Zapatos: I can't even imagine the amount of discrimination that a Hispanic person would have to deal with. The moment my husband says 'eh' or 'zed' he catches an amazing amount of shit and is called out for being a socialist and told to go back home.
@queenjulie: Also, as the article noted, nealry half of the "illegal immigrants" in the country entered legally, but have overstayed visas or are behind on paperwork or what have you. So entering illegally is not really the whole picture. (This is from a woman who has overstayed visas in several countries. But I'm white, so no one cares.)
@thePrototype: 1) People who drive cars without driver's licenses are driving illegally, but we call them "unlicensed drivers" as opposed to "illegal drivers." Same logic.
2) As the article stated, many of the people in question immigrated here legally on temporary or work visas. They then overstayed their visas. However, their initial act of immigration was perfectly legal. Claiming that they immigrated here illegally is inaccurate. It also provides a convenient way to ignore the fact that the immigration process is, as you've said, time-consuming and incredibly costly. Most Americans--especially those who rail against undocumented workers--have no idea how expensive or complicated it is. They can't wrap their heads around the idea that a person could have done everything right and paid every fee, but still be "illegal" because some dumbass at DHS wrote the date in the wrong format on a single form. (True story; happened to a postdoc in my department.)
@thePrototype: In all fairness, people from countries where the wait to immigrate legally is upwards of ten or twenty years probably find it insulting that those from some countries can become lawful permanent residents of the US in a much shorter time period. (What I mean is, the vast majority of undocumented immigrants would prefer to immigrate legally if it were an option for them.)
@thePrototype: in addition to everyone else's good points, the fact is that many undocumented immigrants have perfectly legitimate claims to legal status, but haven't been able to successfully petition for it. They are legally present, but undocumented. Because immigration law is so complex, it is nearly impossible to determine whether someone's presence in the country is unlawful or not just based on their method of entry or current visa status. Immigrants who are able to move to the US because of marriage or relation to a US citizen and are from countries with short waiting lists often have NO IDEA how difficult/impossible it is for others to come "legally."
@J.D.Regent: Okay, I understand the 'undocumented worker' term now, but regarding the difficulty of immigration... shouldn't it be challenging to immigrate? How hard is it to determine what their status? How is not overstaying one's visa just as bad as crossing the border illegally or on false pretenses?
I only have my husband's experience to refer to, but it was very obvious when the visa expired, and now it is very obvious when his permanent residence expires and he is required to renew.
@thePrototype: well as to whether immigration SHOULD be challenging -- that is a value and political judgment that people are obviously going to disagree on. To my mind, in a globalized, capitalist free market where goods, services, and capital travel freely across borders, labor should be able to too. The other issue is that it is not equally easy for all people from all over the world to immigrate to the US. Different countries have different wait times for a visa to become available, and for the great majority of people who wish to immigrate here there is no legal mode of doing so. Your perspective is probably warped because marriage to a US citizen is THE easiest, fastest way to immigrate (I did my husband's papers and have practiced immigration law so I know from where I speak). In the case of the US you also obviously have to look at our history where everyone in this country except First Nations people and descendants of slaves are immigrants or the children and grandchildren of immigrants, the vast majority of whom did not go through anything resembling the currently insane system of legal immigration.
As for the difficulty of determining legal presence, while if your husband failed to renew his permanent residency he would be in violation of civil immigration regulations, he would NOT be a criminal nor should he be deported without a hearing, at which all you would have to do is prove your marriage was still valid and his deportation would be stayed and his status restored. There are various grounds to waive deportation and provide immigration status that do not get a day in court until a person is in deportation proceedings, and there are other people who have modes of legal immigration available to them and don't know it.
It is a strange but real function of immigration law that those who enter on a visa are considered in a different status than those who enter without papers, and a period of legal presence can mitigate deportability in some cases. Some categories of people exist under a legal fiction that they never "entered" the US (meaning they were never inspected at a port of entry) and therefore have fewer due process rights than those who enter legally and overstay or otherwise fall out of status and cannot be deported until they have their day in court.
The bottom line is that immigration law is second only to tax law in its complexity, and just like when you mess up your taxes, you can usually fix it without being convicted of tax evasion or having your property seized, you can often fix your immigration problems without
Deportation or denial of entitlements is a seriously heavy consequence to what is often only a technical administrative law breach. Painting everyone who has violated civil immigration provisions with the brush of criminality is inaccurate and lends itself to xenophobia.
@J.D.Regent: I did not realize that he doesn't really have to ever renew his status, or apply for citizenship, that is fascinating and frustrating for those that do things the proper way.
I personally think that there should be a certain time that amnesty should be offered all of the undocumented people in the United States (who can prove they have been in the country for x amount of years) without fear of deportation and then once that time is over then it would be time to crack down, as there would be no excuse.
The problem with allowing immigrants in easier is they will then have access to the systems that they have never paid into. From talking with my Danish friends and family they are having a serious issue with this, and I have seen it happen in Canada with their healthcare and subsidized post secondary education.
I think that migrant labor should be available without the opportunity of status, and the identity cards should have heavy biometrics (the permanent residence card has it so why not?), and be easy for employers to check, and then hold the employers 100% responsible for the status of their workers. From what I understand talking to farm owner family and friends it is a challenge a worker's status which is crazy, imo.
I did the paperwork for our visa (I realize that it is the easiest) without a problem, all I had to do was dot all the i's and cross all the t's. I don't know how hard the paperwork is to do on different visa's, of course you would be an authority on that, but from my experience it really didn't require a lawyer.
Thanks for the info, as always you are a wealth of information!
12/09/09
Hear, hear. Well said.
And this, my friends, is why diversity matters. Why had it not occurred to the other Justices to rethink their use of language in matters like this? Sotomayor's background does make a difference, not to the law itself, but in how the law is interpreted, expressed, and applied to people's lives.
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I am so glad that you don't let your VALUES influence anything that you do.
From,
Anita Hill
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We should really let the guy get his shut-eye.
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Also, for anyone interested, The Nine by Jeffery Toobin creates a pretty damning portrait of Thomas.
I detest Scalia, but I'll admit to him being intelligent and well-acquainted with the law. I just never agree with him. My issue is that he decides his opinion about a case and then back-tracks his way to justify it in his decisions--when it should be the other way around. Thomas just seems perpetually out of his league when he's on the bench.
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But I agree, the struggles he overcame and the anecdote about the photo were definitely redeeming moments for me.
@burningdinner: I like to rationalize that their friendship is based on both being New Yorkers and opera afficionados. But I still loathe his opinions and his demeanor.
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Also, I forget which case it was, (the name escapes me but it was a strip club in Kansas that wanted to have strippers without pasties--a violation of local obscenity laws) but Scalia made a comment about 10,000 people being naked in the Hoosier Dome, and then Ginsberg and Sandra Day O'Connor kept his analogy in their rebuttal of his argument. The number of times "nipples," "pasties," and "nudity" appeared in the Supreme Court tanscripts was astounding and wildly amusing.
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I never thought I'd see Scalia come down on the side of criminal defendants and then he wrote opinions that re-invigorated the 6th Amendment's right to confrontation. Amazing!
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So shut yo face!
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Generally, concurrences are just a vehicle for jackass-ery. The problem is that even though the majority opinion is 'the law,' the lower courts may prefer to use the concurring opinion's rationale to justify certain rulings, leading to disagreements amongst the lower courts.
12/09/09
But yes. Most opinions often have several concurrences. Usually they are much more civil, save for Scalia who is a bombastic writer.
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(I know you weren't arguing that it was exclusively Scalia, but this thread has had a bit of pile-on against the conservative wing of the bench, and it seemed important to note that the lefties sometimes take the piss a bit as well.)
only tangentially related: I don't know that I've ever referred to a document from the Supreme Court as 'goofy' before. That may come back to bite me eventually.
12/09/09
Then again, I'm more fond of O'Connor because she is all about five parts tests and very helpful to establishing precedent that can actually be used by trial judges. But then again, she was one, too.
I seriously doubt the mess that is Iqbal would have been created if there were justices with trial court experience. The fetishization of the court of appeals as feeder grounds for the supreme court is troubling and has created this bizarre echo chamber where opinions are issued that don't work in a pragmatic sense.
But I digress.
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Next time read the quote more thoroughly. It explained why "illegal" was the improper term.
12/09/09
This also trickles down, meaning that a lot of people who are here legally or born in the US are treated poorly. My stepfather was born here and speaks next to no Spanish, but he's still been subject to racism and screamed at to, "Go back to Mexico" because he's Mexican-American.
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2) As the article stated, many of the people in question immigrated here legally on temporary or work visas. They then overstayed their visas. However, their initial act of immigration was perfectly legal. Claiming that they immigrated here illegally is inaccurate. It also provides a convenient way to ignore the fact that the immigration process is, as you've said, time-consuming and incredibly costly. Most Americans--especially those who rail against undocumented workers--have no idea how expensive or complicated it is. They can't wrap their heads around the idea that a person could have done everything right and paid every fee, but still be "illegal" because some dumbass at DHS wrote the date in the wrong format on a single form. (True story; happened to a postdoc in my department.)
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I only have my husband's experience to refer to, but it was very obvious when the visa expired, and now it is very obvious when his permanent residence expires and he is required to renew.
12/10/09
As for the difficulty of determining legal presence, while if your husband failed to renew his permanent residency he would be in violation of civil immigration regulations, he would NOT be a criminal nor should he be deported without a hearing, at which all you would have to do is prove your marriage was still valid and his deportation would be stayed and his status restored. There are various grounds to waive deportation and provide immigration status that do not get a day in court until a person is in deportation proceedings, and there are other people who have modes of legal immigration available to them and don't know it.
It is a strange but real function of immigration law that those who enter on a visa are considered in a different status than those who enter without papers, and a period of legal presence can mitigate deportability in some cases. Some categories of people exist under a legal fiction that they never "entered" the US (meaning they were never inspected at a port of entry) and therefore have fewer due process rights than those who enter legally and overstay or otherwise fall out of status and cannot be deported until they have their day in court.
The bottom line is that immigration law is second only to tax law in its complexity, and just like when you mess up your taxes, you can usually fix it without being convicted of tax evasion or having your property seized, you can often fix your immigration problems without
Deportation or denial of entitlements is a seriously heavy consequence to what is often only a technical administrative law breach. Painting everyone who has violated civil immigration provisions with the brush of criminality is inaccurate and lends itself to xenophobia.
12/10/09
I personally think that there should be a certain time that amnesty should be offered all of the undocumented people in the United States (who can prove they have been in the country for x amount of years) without fear of deportation and then once that time is over then it would be time to crack down, as there would be no excuse.
The problem with allowing immigrants in easier is they will then have access to the systems that they have never paid into. From talking with my Danish friends and family they are having a serious issue with this, and I have seen it happen in Canada with their healthcare and subsidized post secondary education.
I think that migrant labor should be available without the opportunity of status, and the identity cards should have heavy biometrics (the permanent residence card has it so why not?), and be easy for employers to check, and then hold the employers 100% responsible for the status of their workers. From what I understand talking to farm owner family and friends it is a challenge a worker's status which is crazy, imo.
I did the paperwork for our visa (I realize that it is the easiest) without a problem, all I had to do was dot all the i's and cross all the t's. I don't know how hard the paperwork is to do on different visa's, of course you would be an authority on that, but from my experience it really didn't require a lawyer.
Thanks for the info, as always you are a wealth of information!