"I would hope that a wise white man with the richness of his experience would more often than not reach a better conclusion than a black female who hasn't lived that life."

Guess which US Supreme Court judicial nominee came up with this racist statement?

You'd be wrong, because what she actually said was:

"I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

She also infamously declared:

"(the) Court of Appeals is where policy is made"

Obama's nominee for leading lawmaker, Sonia Sotomayor, is female, Hispanic and has empathy but she is not a lesbian, which will disappoint those progressives who were hoping for a quadrella.

The doctrine of the separation of powers attempts to prevent absolute power from absolutely corrupting.

Should unelected, unaccountable, affirmative action judges be given carte blanche to legislate from the bench?

Or is it OK because activist judges are by definition progressive and the end justifies the means?

Straight from Little Green Footballs, via Andrew Bolt to OLO, courtesy of KMB - complete with the same cherry-picked, out of context quotes.

Yawn.

You're surprised there are Judges that have personal agendas?. lol

I've heard of a Judge - who happens to be female - that has zero sympathy for Police Officers being assaulted. She calls it part of the job.

What about the young copper in WA that was headbutt from behind and partially, but significantly, paralysed?. The assailant and his participating brethren were let off scot free. Make sense to you?.

Believe it or not there's actually cases of Clergy raping children too!.

It's funny how people think things are tickety boo till something pops up on their own little agenda radar...

And the gullible and deceitful want to give unelected judges more power through a charter of 'rights'. No wonder we are self destructing.

runner: "And the gullible and deceitful want to give unelected judges more power through a charter of 'rights'."

That is the line being trotted out, runner. So far I haven't seen an explanation of it that makes any sense to me.

Maybe that is because I don't understand a Bill Of Rights is. I always think of it as limiting the power the government has over its citizens. As in, the government can't pass laws discriminating against a person on the basis of religion, or skin colour, and they can't pass laws that interfere with political speech, nor can it torture its own citizens, and it can't throw a person in jail and keep the reason secret from it citizens, and it can't hide it activities from its citizens.

Yes, implementing rules like that does give the judges more power over the government, as presumably they can strike down laws that don't conform. But it doesn't give the judges more power over you and me, as the judges don't make laws. Only the parliament can make laws, and ultimately it is only laws that restrict what you and I can do. Since the power judges do have us comes from implementing the law and a Bill Of Rights means there will be less laws, surely that means having a BOR gives both the government and the judges less power over us, not more.

Also, there is an inconsistency in the argument. We already have a lot of laws in the constitution. Nobody arguing against a BOR argue we would be better off without a constitution. Ergo there must be "good" or "necessary" laws in the constitution now, so obviously not all laws are bad. So why are the sort proposed for a BOR universally bad? In fact how could they know, given as far I as I know no proposals have been written yet.

I am sure will be lots of argument about what should go into a BOR, but this blanket "it gives more power to judges" sounds like a complete furphy to me.

Yes life would be much better if Judges were all old white men with receding hairlines.

Good grief.

Please define exactly what is an activist Judge? Is it a judge that seeks some equality under the law for minority groups?

It would help if we knew exactly what you mean.

pelican: "Please define exactly what is an activist Judge?"

I have no idea what KMB means by it, but it does have a reasonably well defined meaning. The job of a judge is to interpret the law. But they try to avoid doing that unless absolutely necessary. Instead, they first look at the situation before them and try to see if it looks the same as any other situation brought before a court earlier. If it is they make the same decision as the previous court did. An activist judge is one that doesn't do that, instead they deliberately and knowingly makes a different decision to a previous court.

An example. Many years ago a copyright case, Telstra v Desktop Marketing, was brought before the High Court of Australia. Desktop Marketing was getting the white pages typed into a computer using cheap labour in the Philippines, then selling a CD with the info. Telstra wanted to stop them, and alleged copyright infringement. Now the law says facts aren't copyrightable, but evidently the High Court sympathised with Telstra and so decided the effort that Telstra put into assembling all the names in one place made the whitepages copyrightable (after all it is the effort that mattered, or so they reasoned), and so Desktop Marketing lost.

Every Tom, Dick and Harry decided to try and make a buck off this, so thereafter the owners of Bus & Train Timetables, TV Guides, Cinema Guides, Sea Lane Buoy positions, AFL tables - you name it, threaten to sue anybody who made copies of their stuff, even if people were just giving it away for the public good. This made a lot of people, particularly those who wanted to run public football sweepstakes, very sad.

(cont'd)

(cont'd)

This week, the High Court ruled on another copyright case that had been put before it - IceTV vs Channel 9. IceTV want to copy Channel 9's TV guide, something that was clearly illegal given the previous High Court decision. But the High Court rules in favour of IceTV this time, and what's more in their comments said something along the lines of "By gee, we stuffed up that Telstra vs Desktop Marketing ruling, didn't we? Sorry about that." Well perhaps I exaggerate a bit, but nonetheless the word on the legal street is the High Court has changed their views on what is copyrightable, and guides, timetables and the like aren't included.

Thus the Australian High court deliberately didn't follow previous court cases, and thus could be said to be activist. Or maybe they just wanted to give their own parting gesture to Sol. Who knows?

KMB is of course full of it when he says "activist judges are by definition progressive". For example, activist judges have been known to expand a woman's right to have an abortion, and at other times to reduce it. It cuts both ways. Usually they cite "changing community attitudes" when they do this.

Dear KMB,

You said, "...should unelected, unaccountable,
affirmative action judges be given carte blanche
to legislate from the bench?"

Supreme Court judges are appointed after a very
rigorous scrutinisation process. Sonia Sotomayor
has been nominated - her appointment has yet to
be approved. Staffers on the Judiciary panel have
presented a 10 page questionaire - where the judge
will have to answer in advance of the public
session she will undergo with senators.

She will have to divulge personal, financial,
employment, information. She will have to provide
copies of all of her writings, speeches, interviews,
and opinions. She will be tested thoroughly.
And only then will the decision be made on her
appointment to the Supreme Court.

I don't understand quite frankly to what you're
objecting. She's a New York born daughter of Puerto
Rican parents. She's 54, a veteran of the Federal
Bench, who was reared in a Bronx housing project, and
attended Princeton (BA). Her Law Degree is from
Yale. She's reached the highest echelons of the
legal profession and she's made it quite clear,
and I quote, "I don't believe we should bend the
Constitution under any circumstance. It says what it
says. We should do honour to it."

To what exactly do you object - regarding the
nomination of this judge to the Supreme Court?

Foxy,

You'll notice that controversial decisions are usually split along ideological lines.
This is because there are two types of judges:
The constructionists who take a strict view of the constitution and the law, interpreting it narrowly.
The activists who read into it whatever they please according to their politics.
Sotomayor is one of the latter.
You can read about a couple of her pottier decisions at these links:

http://www.judicialwatch.org/news/2009/may/judicial-watch-statement-obama-s-nomination-judge-sonia-sotomayor-united-states-suprem

http://www.discoverthenetworks.org/individualProfile.asp?indid=2396

Generally, Democrat presidents appoint activists because they can be relied upon to make judgements effecting radical social change. It enables the Democrats to fast track these changes by bypassing the electorate while washing their hands of any responsibility.
The "very rigorous scrutinisation process" is done along party lines so that as long as Sotomayor doesn't have any skeletons in her closet the majority Democrats will approve her nomination.
Actually, as she's a Democrat, it doesn't matter a damn if she has any skeletons in her closet.

Case in point, Timothy Geithner.
A proven serial tax cheat, he was nevertheless nominated by Obama and rubberstamped by the Democrats to head the Treasury, which encompasses the Internal Revenue Service.
You heard it right.
The head of the US tax department is a tax cheat.
But he's a democrat and that was good enough to pass the so-called screening process.

http://www.washingtonpost.com/wp-dyn/content/article/2009/01/18/AR2009011802070.html

Sotomayor is a shoo-in.
She'll pay lip service to the constitution and then she'll interpret it according to her whim, like all good judicial activists.

rstuart

The copyright case is an interesting one. I have some sympathy (surprisingly) for Telstra in the first case given they have financially invested in gathering all that information in one place, maintaining and marketing it to the consumer.

Then of course there is the risk of the law being interpreted or extended to support the ridiculous. Often new precedents can be set merely because one side is more gifted than the other rather than the outcome always being what might be considered universally 'fair'.

For the law to change perhaps we do need the odd activist Judge, but from my admittedley limited understanding of the law, precedence can come from international experiences as well as local suggesting that there is a wide source from which to draw an argument. I believe there are cases made using precedence from Canada and Britain. Activist Judges may act more or less Conservatively than the various interest groups would like.

Jesus was an activist (as the story goes) whose ways were seen as progressive or revolutionary (hence dangerous for the status quo) against the Romans.

I was watching a bit of an ABC documentary tonight about the disagreement between the Jews and the Christians over money-lending and the Christians fight against the immoral practice of usury - demanding interest for lending money. Nowadays paying interest on a loan is seen as very normal. If another well doer wished to reverse this practice I am sure it would be seen as activist or progressive or even worse the old reds under the beds would come out in fear of any change to the norm no matter the historical origins.

Using your definition we may at times need activist Judges to ensure that the law is never so set in concrete that an unjust precedent can be changed to suit changing circumstances such as the unequal treatment of gay couples under the law.

There is no reason why the Judge in the case that KMB outlines would not be as fair-minded as any other Judge on the Bench.

Judges are usually 'guild members'.
They tend to display certain attributes that most would abhor.

They seem to display neither guilt nor remorse after causing their victims immense detriment.
They rely upon the word of others and rationalise their decisions based upon what comes to them as hearsay.

They pretend not to accept hearsay as such but ultimately what they claim is evidence is in fact hearsay at the point of delivery to them or a jury in court.

As regards racist.
Skin colour doesn't count.
One way or another it is the colour of money that influences the outcome.
Why pretend otherwise.

'She'll pay lip service to the constitution and then she'll interpret it according to her whim, like all good judicial activists.'

This is the same spin as Mr Rudd used talking about being a fiscal conservative leading up to the election. At least Peter Garret was honest enough to say they will do what they like once elected.

Obama appoints his mates no matter how corrupt. I think he thinks he is in Africa. Mr Rudd appoints his mates and makes up porkies about the most suitable applicants for jobs not being qualified as per his appointment to Germany.

At least the electors get a chance to throw out dishonest pollies. With judges we will be stuck with them.

A Judge is an abomination. From the comments on this thread so far, It is quire clear that the thorough brainwashing inflicted on the collective Australian psyche, over the past sixty years, has not yet caused a reaction. Newton’s law, for every action there is a reaction should have kicked in by now, and it may be that with the collective psyche, now available through the internet and places like OLO, will understand the fraud. The word judges, means a jury.

The New Testament teaches that the Holy Spirit is to be the judge. The separation of Church and State occurs when the representative of Almighty God, the Judge appointed by the State, and paid by the State, convenes a court, and installs judges, twelve in number, the same as the disciples were, and they do the judging by collective reasoning. No one person can be a Christian and a Judge. The principles of jury trial are found in Matthew 18:20, for where two or three are gathered together in my name, there am I in the midst of them.

Jesus Christ went to his fate, willingly having been offered Roman citizenship, and jury trial, by Pilate. He went to teach us all the principles of Good Government. They are incorporated into the four Gospels, not the Pauline texts that follow. The Coronation Oath 1688 ( Imp) incorporates the Gospels into Constitutional Law.

The Roman Catholic Church has been the State in many parts of the world with disastrous results. Hitler and Stalin modeled their governments on that Church. The English adopted the Gospels, and Rome has been at war with the British ever since. The separation of Church and State was abolished in SA, in 1927, New South Wales in 1970, the Commonwealth in 1976 and 1979, Victoria in 1986, Queensland in 1991, and the federation is broken and fractured. Court with a capital C is the State. How long must we wait for the members of Parliament in Canberra to wake up to the fact that Judge is a word absent from S 79 Ch III Constitution

Barnaby Joyce was reportedly on Alan Jones a couple of days ago, calling for the abolition of the States in Australia. Federation both abolished the States and created them at the same time, but the law has been hijacked by them, and Canberra has been slack. The intolerable burden of the States only continues, because one man, the Director of Public Prosecutions of the Commonwealth, has taken over and discontinued all private prosecutions, of Judges in Australia since 1983. The State itself will not prosecute Judges, even though they are all criminals. That goes for all nine States including the Commonwealth.

Between 1993 and 1996, Paul Keating’s government passed all the legislation necessary to effectively abolish the States. Section 268:10 Commonwealth Criminal Code, makes every Judge and Magistrate liable to 25 years imprisonment. Since 1275, and the Stature of Westminster the First, every accused person should have the right to freely elect to pay a fine, and avoid a trial, or face a trial and possible imprisonment. This was pure Celtic law, and very just.

The Lex Talionis of the Roman Catholics now adopted, illegally and in direct contradiction of the principles of the Constitution, gives a Judge the power to imprison without choice. That is why Sotomayer, thinks a Court of Appeal is so powerful. She is so wrong. We had until 1970, the Habeas Corpus. This was freely available, and if a person was aggrieved about his trial, he could apply to as many Justices as it took to get a new one. Not only that anyone could do it for him, not just a lawyer.

Paul Keating’s government modified the Trade Practices Act 1974 in 1995, to make S 45 apply to every State authority, carrying on any business. The practice of excluding 12 ordinary people from both passing judgment and sentencing, in every case, became illegal. Keating is an Irish name. If KR micro manages the Attorney General’s Department, like he manages Foreign Affairs, and gives us back our Constitution, stolen by the Liberals, the States have a very limited future. Law enforcement is a business

Tourets, Pete?.

pelican: "I have some sympathy for Telstra given they have financially invested in gathering all that information"

Oddly, from Telstra's point of view I don't think it was about that at all.

Firstly, Telstra has to maintain a customer databases on their computer systems, so they can bill you. In fact they track every call you make, every payment, every pair of wires in the ground - the name and address information in the white pages is just the tip of the iceberg. So when you think about it, Telstra didn't spend any effort collecting the information - they already had it. The effort they did expend was in formatting that information into a book. But really that wasn't much - they employed a few computer programmers to maintain a system that just spat out the white pages in electronic form, which they sent off to the printers. For a corporation of Telstra's size this is almost an insignificant effort.

Secondly, Telstra doesn't sell the white pages. They are free. Advertising appears to be insignificant. So it is not like Desktop Marketing's efforts actually lost Telstra any income. Indeed, to the extent that Desktop Marketing reduced the number of white pages distributed, it probably saved them money.

Thirdly, having easy to use directories out there probably benefited Telstra in other ways. If people were using 3rd party phone books, then they were probably making more phone calls. Unlike the white pages which are just a cost, phone calls actually bring in money.

So in essence Desktop Marketing was getting people to pay money for a service Telstra was otherwise forced to provide for free. So unlike say the AFL team schedules for instance (where the AFL insists on charging people if they use them), for Telstra it was never about money. They said it was at the time, but that was just a convenient furphy to put before the court. I get real suspicious when people feel the need to hide their motivations.

The doctrine of the separation of powers attempts to prevent absolute power from absolutely corrupting. Should unelected, unaccountable, affirmative action judges be given carte blanche to legislate from the bench. Great Question KMB.

The misinformed think that the separation of powers, is effected by paying a Judge, $7000 a week to sit on the High Court. Wrong. It is effected by applying the principles of the New Testament legislated as law, by the Coronation Oath 1688 ( Imp), and printed in John 5 Verses 22 and 23. Jesus Christ said in John 5:19, The Son can do nothing for himself but what he seeeth the Father do. The Father ordained jury trial. Jesus Christ taught democracy in his Fathers name.

Even though unelected, every person is equal before the law. That includes Judges. Perhaps it is the Hindhu influence, but I think we would be better making Brahman Cattle sacred cows, and above the law, than Judges. In 1914, it was an offence for any Judge to sit without a jury. It was called perverting the course of justice. Penalty $33,000. In 1995, the Parliament of the Commonwealth created an offence of slavery; penalty twenty five years imprisonment. The words defining slavery are: exercising all or any of the powers attaching to the right of ownership. It includes exercise a power arising from a debt incurred or contract made by a person. Penalty $165,000.

The only reason the States are surviving is because they have made their citizens slaves, and exercising ownership over them. Judges should be very afraid. If the Commonwealth is fair dinkum, a Judge will be losing super, and find out what it is like to be homeless. The New South Wales Taj Mahal, erected at Maitland, is full of slavemasters, and the slaves are revolting. In every State millions in unpaid fines are a vote against slavery. The severe deprivation of physical liberty, inflicted by the States is a refusal to issue a drivers licence, unless a fine is paid. The corporate penalty for each offence, is $825,000. The Commonwealth can send the States broke anytime

CJ MORGAN accuses KMB of cherry picking an out of context quote. Here is a link to the complete text of Judge Sotomayor's speech as reported in the New York Times:

http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html?pagewanted=1&_r=1

Posters can decide for themselves whether seeing the context makes it better or worse.

Here is the paragraph in which the quote appeared

"Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

It is not clear whether the "inherent physiological … differences" refer only to gender or whether they refer to "national origins" as well.

Here is a link to the comments about Judge Sotomayor's nomination that appeared on the website of the National Council of The Race (La Raza).

http://www.nclr.org/content/news/detail/57500/

The NCLR is the leading Hispanic lobby group in the US.

Dear KMB,

Thank you for giving me the extra websites,
and explaining your concerns about this
particular nominee to the US Supreme Court.

While I can understand your concerns, I still
feel that you can rest assured that nothing
too extreme will be allowed to take place.
Sonia Sotomayor - if her nomination is a
"shoe-in," as you feel it will be, won't
actually have all the power to make any
decisions on her own. She's going to be
one of several judges on the Supreme Court.
And her opinion is one out of several, in the
final decision making process.

The Supreme Court as you know is the court of
final appeal in the US and it consists of at
least five judges (increased to eight in 1995),
including the Chief Justice.

I don't think there's much to be concerned about.

"Secondly, Telstra doesn't sell the white pages. They are free. Advertising appears to be insignificant. So it is not like Desktop Marketing's efforts actually lost Telstra any income. Indeed, to the extent that Desktop Marketing reduced the number of white pages distributed, it probably saved them money."

That puts a different light on it rstuart. I wonder what the main beef was, or if there was a beef at all just a kneejerk reaction?

Yellow Pages would be different because I believe subscribers pay an annual listing fee but the White Pages case is a bit perplexing.

Bring Sonia Sotomayor here WE NEED HER!

NEW DEVELOPMENTS.

ASymeonakis, CJ Morgan, Foxy

You may be interested in this from Associated Press.

"On Friday, White House spokesman Robert Gibbs said Sotomayor acknowledges she made a poor word choice." [Referring to Sotomayor's now notorious comments about "a wise Latina woman"]

See:

http://www.google.com/hostednews/ap/article/ALeqM5gybh1tAJNK3I6fP1gJUsFOhJe5AAD98G6SF00

The "rags to riches" part of Sotomayor's story seems to be mostly her parent's doing. To quote AP again:

"… Sotomayor did not live her entire childhood in a housing project in the South Bronx — she spent most of her teenage years in a middle-class neighborhood, attending private school and winning scholarships to Princeton and then Yale. "

"She now earns more than $200,000 a year and owns a condominium in Greenwich Village, a neighborhood of million-dollar-plus homes. Her brother, Dr. Juan Sotomayor, is a physician in North Syracuse, N.Y., whose practice doesn't accept Medicaid or Medicare — programs for the poor and elderly — according to its Web site."

The picture that emerges from the AP article is of someone who mostly grew up in relatively comfortable circumstances and played the race / ethnicity card when it suited her.

A case of spin, spin and more spin

Judges are in contempt of Parliament whenever they sit without a jury. The Parliament of the Commonwealth is a bit meretricious , and tolerates other tarts, because it is not very diligent in maintaining its power and dignity. Between 1993 and 1996, Parliament basically legislated to abolish single Judge Courts, in line with s 79 Constitution by s 45 Trade Practices Act 1974, but not one Judge, supposedly bound by S 5 Commonwealth of Australia Constitution Act 1900 and S 109 Constitution, has applied that law ever since.

It made it illegal to exclude ordinary Australians from participation in court proceedings, and in section 40 and 41 Federal Court of Australia Act 1976 the money to pay them to do so has been appropriated. S 45 Trade Practices Act 1974 makes any contract made to exclude anyone and if it lessens competition it is illegal. The States and Commonwealth should be competing to deliver justice to Australians. They are not, and in fact the entire legal profession is the last great cartel. Both the Commonwealth and States are corporations. They should not be entitled to delegate corporate power to an individual, but they have and it is corruption.

The Contract, made between the subjects and the Queen in 1900, said in s 79 Constitution, judges and courts, were required for the exercise of federal jurisdiction. Instead we have Judge and Court, when the words in S 5 says binding on the courts judges and people of every State notwithstanding anything in the laws of any State. It must be a hidden quality in a Judge that he never did punctuation at school, or learned the meaning of a Capital letter.

For a Judge to legislate, he or she is taking away the peoples prerogative. A court can disallow legislation, and the High Court did in 1996, but in 2004, in contempt of Parliament and their own Oath of Allegiance, took the Queen off all process issued out of the High Court. This is contempt of Parliament but not one member has yet complained. They don’t value Parliamentary authority, do they

When you give your vote, to a MP and they go to Canberra on your behalf, you would expect them to guard their delegated power. Even though you may have voted for their opposition, you ought to be able to expect great things from those in high office. They are given one overriding power by the Standing Orders of the Parliament. That power is to rise to their feet and draw the attention of the Parliament to contempt of the power of both houses.

Standing Orders are the Rules of the Parliamentary court. In the Reps, a member may speak at any time on a matter of privilege. SO63, and by Standing Orders 95 and 96, any member may raise a breach of Statute in the House as contempt. When raised it suspends all other business in the Parliament. Any Australian Judge, who legislates, would be in contempt of Parliament, and under S72 (i) Constitution can be removed by the executive, on Parliamentary authority.

Any member who wants to get some National attention, should look at S 33 High Court of Australia Act 1979 and then the High Court Rules 2004. Parliament has mandated that all process issued out of the High Court shall be in the name of the Queen. Justices Gleeson, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon, aided and abetted by CM Doogan, Chief Executive and Principal Registrar, have prescribed forms for use in the High Court that do not have the name of the Queen on them. Has one member of either the House or the Senate raised this contempt of Parliament in either House. It would appear not. Is it any wonder we are poorly governed. Even the High Court will not show respect for Parliament.

If seven Judges and a Chief Registrar will not respect the Act that creates their institution, what chance have we got of getting justice. Parliament can huff and puff, however while its allows Judges to reign, its efforts are just puffery. Go to your local Member or Senators web page at www.aph.gov.au and ask them why they tolerate this

Lets hope Judges and their associates read OLO. When a Notice is published in a Public Forum, it has been a principle of law, for hundreds of years, that all persons have seen it. It has also been a principle of criminal law, that ignorance of the law is no excuse, but in reality, that is not quite right. There is so much Statute law out there, that a jury has been instructed on occasions, that unless the law is brought to the attention of the offender, he can be excused for not obeying it, but only once.

This was the principle of the law of mercy, and it was extended to all of England when only a few could read, by reading Statute law in Churches on a Sunday. The Magna Carta was read three times a year in every Anglican church in England, and this was deemed sufficient notice.

Every Judge and Magistrate who is still denying the International Covenant on Civil and Political Rights should look at S 268:12 Commonwealth Criminal Code. The Parliament has made disobedience to Article 14 of the Covenant, an offence punishable by seventeen years imprisonment.

Section 19 (8) Criminal Code Act 1899 (Q) set out that principle, that a first offender on conviction, was entitled to a suspended sentence, except for murder, treason or rape.

Article 14 says: All persons shall be equal before the courts and tribunals. Today no one is equal to a Judge. A Judge is not a court. He is a Court, maybe, but he must presume a person innocent, by article 14 (2) and that casts the onus on an accuser. State Judges are bound also, by the Covenant. Article 50 states: the provisions of the present Covenant shall extend to all parts of federal States without limitations or exceptions.

The associates to Judges are their ears and eyes. They had better watch out or their boss could follow Einfeld into the enjoyment of the hospitality of Her Majesty. To use a Queensland term, the lot of them should be bushed and a new lot installed

Dear Steven,

Prejudiced thought always involves the use of
stereotypes - a rigid mental image that
summarizes whatever is believed to be typical
about a group.

The essence of prejudiced thinking, however,
is that the stereotype is not checked
against reality.

Sonia Sotomayor - may have used the "hispanic,"
card to her "advantage," but it doesn't change
the fact that she is a New York born daughter of
Puerto Rican parents - a veteran of the Federal
Bench who did attend Princeton and Yale en route
to the highest echelos of the legal profession.
And she's been nominated to the Supreme Court
because the President of the US sees her as an
asset.

And, as I pointed out to KMB, hers will be only
one voice out of a panel of nine.

Foxy,

If I thought I could gain an advantage by playing on my gender or ethnicity I'd probably succumb to temptation and do it. I'm not blaming Sotomayor for taking advantage of the system; but neither am I going to be taken in by the spin that surrounds her nomination.

Frankly, what troubles me most about Sotomayor is this statement:

"Whether born from experience or INHERENT PHYSIOLOGICAL OR CULTURAL DIFFERENCES, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and NATIONAL ORIGINS may and will make a difference in our judging…" (Capitalisation added)

Now what exactly does that mean Foxy?

What is it if not, in your own words, "Prejudiced thought [that] always involves the use of stereotypes - a rigid mental image that summarizes whatever is believed to be typical about a group."?

What concerns me about Sotomayor is not so much that she occasionally played the race / ethnicity card as that, judging by her words, she seems to be the sort of person who engages in ethnic profiling. Many ethnic profilers attended Princeton and Yale and attained the "highest echelons of the legal profession".

President Obama may have nominated her because he thought she was suitable but, given the importance to him of the Latino vote, it would be naïve to dismiss the notion that Sotomayor's ethnicity played no role in her selection.

Anyway it will be interesting to see how this plays out in her Senate hearings.

I suspect that you occasionally make stuff up, PtB.

>>The Magna Carta was read three times a year in every Anglican church in England, and this was deemed sufficient notice<<

Do you have a definitive source for this?

According to the American Law Library, "Magna Carta was read twice yearly in both county courts and cathedrals" from around the end of the thirteenth century. Quite a long time before the advent of Anglican churches, I fancy.

Dear Steven,

You're not alone in your concerns about
Sonia Sotomayor. There's quite a few
conservative Republicans in the Senate
that are equally concerned. And as you
say it will be interesting to see how
things progress with her nomination.

I'm sure that all of the 9 judges that
make up the Supreme Court - have
their own various ethnic backgrounds
and baggage. However as The New York Times
has pointed out, "The role of a jurist is
to apply the law even-handedly, despite
their own feelings or personal or
political preferences. With her vast
experience Sonia Sotomayor is well aware
of this - and what her duties will be.

In fact she's stated, "I don't believe we
should bend the Constitution under any
circumstance. It says what it says.
We should do honour to it."

In other words she believes in, "Equal
justice under the Law."

I feel that in a country like the US -
with such a vast mix of people - their court
of final appeal - the Supreme Court needs to
have a fair cross-section of jurists from
the nations cultural backgrounds represented
if a fair and reasonable judgement is to be
passed. But that's just my personal opinion.

Sonia Sotomayor is going to be put through the
mill and scrutinised thoroughly even before
she undergoes the public session with the
Senators. She will have to divulge not only
personal information but she will have to
provide copies of all her writings, speeches,
interviews, opinions, and so on.

As I wrote to KMB - there's little to be
concerned about.

Foxy,
Sotomayor doesn't believe in "Equal justice under the Law."
She practices "Equal outcomes using the Law."
She is a product of affirmative action and she interprets the law from an affirmative action perspective.
In so doing she discriminates against non-minorities on the basis of their race.
Her words and her actions make her a racist, plain and simple.
Oh, I forgot.
She can't be a racist because she's not a white male.
http://townhall.com/columnists/MichaelReagan/2009/05/27/the_future_of_affirmative_action?page=1

There is a war going on for the hearts and minds of mankind, and the major players are Secularists, Atheists, Islamists, and Christians, and the key players in that war are the Judges. Judges rule us. Parliament today thinks it is all powerful, but just as Hitler found that pounding the English with all his airpower, he could not prevail one inch without infantry on the ground, so too any Parliament. The allies pounded Hitler and Germany in spades, with airpower, but it was only soldiers on the ground, who drove Germany to surrender. The infantry in the battle for the hearts and minds of mankind, are the judges. We need to be very careful who we select to be the edge of the government sword.

I was infantry. As infantry it was the job of the ordinary soldier, the squaddies, the grunts, to take and hold territory. The artillery and airforce helped, but the ultimate power had to be carried out, in the absence of nuclear annihilation, by men predominantly, on the ground; the private soldier. The Officers were only there to direct the raw power of the infantry. It has always been the case, since man studied and has applied the Art of War. In the wars for the hearts and minds of ordinary Australians, the infantry is the Police. However does this really work? There was a time when Police only had guns as backup. Now they carry them routinely. Where have we gone wrong?

In another post, there are lamentations about blue collar opinion being worthless. I disagree as a student of Constitutional law. The opinions of the blue collar majority, are essential to the just and fair functioning of any society. Lets examine the four competitors cited above.

Secularists want us all to stay in our Churches and not engage in everyday political action.

Atheists have no belief in a God; They cannot accept that man is made in God’s image.

Islamists, are a variety of the Roman Catholic model, leaving only the Christians.

Christians when effective should not judge, they should be the infantry

I once requested a Christian Judge, in the District Court in New South Wales. They thought I was joking. There are 69 District Court Judges in New South Wales, and they all call themselves Judge. The Supreme Court has 59 Judges calling themselves Justices. Some of these people go to Church at the start of the Law Year, every January. There are 17 Supreme Court Registrars

Are they Christians? Can they be Christians? Not one of these 145 Judicial Officers, feels any obligation whatsoever, since 1970, to offer a jury trial to an ordinary citizen. If they were Christian, they would feel guilty about that. We have countless Magistrates. What about them? Do they feel any guilt when they play God with peoples lives. Are they Christians or a type of racist Legislative Assembly, overruling the will of Parliament on their own arbitrary whims and fancies.

In 1970, the Parliament in NSW legislated Christianity and its justice system out of existence. S 6 Supreme Court Act 1970 made 9 lawyers the Supreme Soviet of New South Wales. They make the rules, and you better obey them. A Soviet is defined in the dictionary to mean: an elected legislative body or council. The New South Wales Soviet is not elected, it is appointed by the Cabinet. Its Uniform Civil Procedure Rules 2005 is its legislation. It allows for an election to have a jury trial.

They are never allowed as of right. A litigant must go with a cheque, payable up front, before a jury trial will be considered. Can a Christian go to a Court. He must go when summonsed. If he is a criminal, he will be given jury trial, but then he is an accused sinner. If he is not a sinner, he does not qualify for a jury.

If any one of these 145 was a Christian, would they do unto others as they would have done to them? Do they love us or hate us? I suggest they hate and despise us all. Until 1970, they had to be Christian. No consent meant no Judge then.

In the Federal Court of Australia there are 49 Justices. They call themselves Judges too. I suppose they feel they can, because the Parliament uses that word. In the Federal Court of Australia Act 1976 the word Judge(s) is used forty-one times in the first six pages. It does not appear in the Constitution except after an amendment made in 1977. For the first seventy-seven years of the Commonwealth, the word Judge did not appear either capitalized or un-capitalised in the Constitution. The word judges is there, without a capital letter. Does the use of the word Judge in an Act of Parliament make the Constitution a sham, or does the Constitution make the Federal Court of Australia Act 1976 a sham?

When we had Christian Justices in New South Wales before 1970, the Federal Court of Australia could never have come into existence, and neither could the High Court in 1979. These unelected appointees of the executive, are supposed to owe the same allegiance to Her Majesty Elizabeth the Second as a member of Parliament. She must be a Protestant Christian. There is no such thing as a Christian Judge. It is an impossibility. Has the High Court become the Supreme Soviet in Australia?

Christianity is democracy. Democracy demands that ordinary people participate in political affairs. These undemocratic individuals cannot be Christian. The Common Law Procedure Act 1899 has a section where in New South Wales anyone who saw a Statute broken could sue for a remedy. Anyone at all, you, me or anyone else, and we had an as of right entitlement to have the case decided by a jury of 12. The Constitution Statute was worth something then.. Today it’s simply a sad joke.

The same Act uses the word Court, another word not present in the Constitution unsupported by an adjective, High Court or Federal Supreme Court. Have we been taken over by a dirty little sect of socialists? Paul Keating’s government thought so. He legislated to make them all pay. We wait with bated breath, Christians to see if KR is really one of us

One more episode in the Racist Judges trilogy. Not only are Judges racist, they are sexist too. By excluding both men and women from the former grass roots political meetings, where the weighty matters of State could be debated, and decided by 12 ordinary people, exercising extraordinary powers, unique to Christian government, they discriminate against women as well as men, Christians as well a Muslims, Atheists and secularists alike.

Christian government presupposes that when two or three come together, in the name of Jesus Christ the supernatural powers of Almighty God will deliver a blessing, upon the just cause. See Line two of the Commonwealth of Australia Constitution Act 1900: Relying on the blessing of Almighty God. Nothing supernatural can happen with a Judge.

The common law was the practical application of the blessing of Almighty God. It confounded Emperors, it controlled Parliaments, it made each and every subject a valued and treasured member of society, because every one of them is said to be made in God’s image. Every Premier of Every State was subject to the common law. Every government had to be very careful, not to offend common sense, because the home of common sense was the common law court.

When a Judge legislates without a jury’s consent, he is in contempt of Parliament, and should be called to account. When Parliament legislates badly, it is in contempt of the common law and also should be called to account by a jury. Before 1970, the Christian machinery that guaranteed common sense, was law in the Common Law Procedure Act 1899 that allowed anyone, in s 24(c.) to sue for breach of Statute Law, and recover damages for that breach.

Like JC said, if tares are sown into a wheatfield, someone has to harvest the tares and burn them. So it is with bad Statutes, and anyone could bring Statute Law into the crucible of a common law court, that it be tested against the law. The creation of Courts, where Judges preside alone, has stolen our basic civil rights from us. Paul Keating’s government restored them

Dear KMB,

If Sonia Sotomayor practices as you claim,
"Equal outcomes using the Law."
How can that be a bad thing - if the outcomes
are equal? And how can that be discriminatory,
again, if the outcomes are equal?

And if the outcomes are equal as you say - then
isn't that equal justice?

Foxy,
There is a world of difference between equal opportunity and equal outcome.
The case that defines Sotomayor's approach (and yours I'm beginning to suspect with horror) is Ricci v DeStefano.
In this case Ricci et al were denied promotion, not because they had not earned it through high scoring in the exam but because only whites and a Latino had scored high enough to earn a promotion.
No blacks had scored well enough to earn the promotions on offer.
In other words, all had equal opportunity to earn a promotion through passing the exam, but the outcome didn't fulfil racial quotas.
The exam was therefore deemed racist, even though it had been specifically designed from the outset to guard against this possibility.
Ricci sued and lost due to Sotomayor's decision.
If this is the sort of cockamamie world that people like Sotomayor are leading us into I don't want to be part of it.
If you or your child's life relied on a fireman to come and rescue you would you prefer that they were in that position on the basis of their competence or would you prefer that they had been chosen on the basis of their skin colour?

<<And if the outcomes are equal as you say - then isn't that equal justice?>>
One person works hard all their life, acting responsibly, going without and saving so that they can look after themselves in retirement.
The other person avoids work and responsibility, eats, drinks and makes merry for tomorrow they might die, ending up with nothing at retirement age.
They each had equal opportunity.
At the end the of the day, the government steps in and takes half of the first person's wealth and gives it to the other person.
Equal outcome.
Equal justice?
Maybe in your worldview Foxy, but not in mine.
Or should everybody have just been given equal scores in the Ricci exam?
That would have led to an equal outcome and therefore equal justice according to your logic.
Foxy, Foxy, Foxy...
A woman who makes those sorts of decisions and then has the arrogance to describe herself as wise, declaring that a person of "her experience would more often than not reach a better conclusion than a white male" is hardly fit to serve at the lowest level of responsibility let alone the highest level.

Dear KMB,

Well, the way you explain things - it seems that
I'd better just go and do some more research.
Until I get things better sorted.

Bye for now.

Foxy: "Well, the way you explain things - it seems that I'd better just go and do some more research."

Good for you. KMB is just repeating a line he has found on right wing blogs. Sotomayor's appointment is a hot topic right now. The left wing blogs have a very different view point, of course.

It is worth knowing while you read them that in America Judges are in general a lot more "activist" than our Australian Judges. American politicians seem to create messes and leave it for the judiciary to sort out. The current patent mess is a great example. http://forum.onlineopinion.com.au/thread.asp?article=7458#115925 It was created by the US pollies, but rather than fix it themselves they are leaving it to the Judiciary to sort out. To the US Judiciary's credit they are gradually fixing it, but it is taking a long, long time and in the mean time literally billions are being lost in frivolous law suits.

So the reality is all US Judges are activists. They have to be. But nonetheless accusing them of being activist makes great political sport, as you are finding out. However KMB is outright wrong when he says: "because activist judges are by definition progressive". Judges of both sides are equally activist: http://www.nytimes.com/2005/04/19/opinion/19tue3.html

If you to wanted see a spectacularly poor nominee for the US Supreme court, you could not go past George Bush's nomination of Harriet Miers. She had all the right qualifications in Bush's view. Lay preacher, member of his staff, born again Christian. But she had never been a judge in any court, predominately done corporate work and when she had appeared before a court, mostly lost. Of course KMB and George are on the same side, so I am not sure he would bring it up. Pity, as in comparison it makes Obama's nomination Sotomayor seem very tame.

Dear KMB,

Well, I've done my research - reading as many
different websites and opinions as I could
find on Sonia Sotomayor.

And, KMB, I'm afraid that you and I are going to
have to agree to disagree on this one.

After doing all that reading I began to realize
that as one web- site pointed out - 'The Supreme Court
in the past was uniformly white and male, when it
delivered historic rulings against racial and sexual
discrimination.'

Did anyone bother to question their
impartiality? Or Their 'opinions, sympathies, and
prejudices?' I doubt it. No one would dare!

Is there really such a thing as a truly objective
stance or only a series of perspectives. Doesn't
personal experience affect the facts that judges
choose to see?

The famous Justice Oliver Wendell Holmes once said,
"The life of the law has not been logic; it has been
experience." And people's life experience will
'inform their judgements in life as lawyers and
judges. Life is more than a technical experience.'

After doing the research, I feel Sonia Sotomayor will
bring quite a lot to what was predominantly
the domain of the white male, the Supreme Court of the
US.

Sonia Sotomayor says:

"All judges have cases that touch our passions
deeply, but we all struggle constantly with
remaining impartial and letting reason rule."

I don't think you can ask any more than that
of any judge.

Excellent work, my dear Foxy.

Love the point that no-one ever questioned the impartiality of all white all male judiciary way back when that was considered the norm.

Will KMB give your post such reasoned thought?

From my limited understanding these quotes are taken out of context. Apparently the main focus of the original quote was the overriding need to work within the law and not from a preconceived opinion or to be an activist judge.
However STANDPOINT THEORY places great importance on where you come from and what life experiences you have had.
Whilst many wise white men may sympathize with a poor non-white women they will NEVER know what it is actually like to a member of a minority.

Foxy, Fractelle, beefyboy,
The mind boggles!
Where to start?
The logical outcome of your “reasoning” is a quota-filled Supreme Court:
Male, female, black, white, Hispanic, Jew, Muslim, homosexual, lesbian, rich, poor, etc on a proportional basis according to demographics.
Hang on, better scrap white males.
Would white females be OK? They're a victim group.
Then with each case only those who know what it’s like to be F/B/W/H/J/M/H/L/R/P/etc should sit in judgement.
They must be sure to show appropriate sympathy for their own type.
So long as they declare that they “struggle constantly with remaining impartial and letting reason rule” they should not be judged on their judgements, no matter how absurd.
But is it enough?
How can somebody who has never murdered somebody in the heat of passion really know the murderer’s struggle?
Surely only a murderer can judge a murderer?
Foxy,
<<'The Supreme Court…was uniformly white and male, when it delivered historic rulings against racial and sexual discrimination.' Did anyone bother to question their impartiality? Or Their 'opinions, sympathies, and prejudices?' I doubt it. No one would dare!>>
This statement is logically flawed (although I'm sure your "no one would dare" statement is impeccably researched and supported by evidence).
If they “delivered historic rulings AGAINST racial and sexual discrimination” on what basis would you then “question their impartiality, opinions, sympathies and prejudices?”
You people think that objections to Sotomayor are based on the fact that she’s not white and male. Scalia is a Latino (in the true sense and not the racialised sense) and Ginsberg is female. So what?
Sotomayor’s previous decisions demonstrate that she’s not fit.
The Supreme Court vacancy should be filled based on merit not racial quotas.
I suppose you couldn't expect anything else from an affirmative action president than affirmative action Supreme Court judges.
By the way beefyboy, white males are a minority in the USA.
Maybe you should have used the term oppressed minority or victim.

Dear KMB,

I've finally figured it out...

And seeing as you so like my quotes
here's another one for you:

"The rich man in his castle.
The poor man at his gate,
God made them, high and lowly,
And ordered their estate."

Societies are rarely homogeneous, although often
one particular group assumes power. In Australia,
Britain and the United States because of historical
circumstances, this has been the Anglo-Celtic
group.

So, of course some people are going to get upset
when less powerful groups demand a larger share
of the place in the sun, or a more equitable
system (in the case of Sonia Sotomayor) of the Law.

I understand where you're coming from KMB - and
you're not alone, but you do have to try to remember
that the only constant in life is change so the
sooner you get used to it, the easier it will be for
you. Because like it or not - it's going to happen
anyway.

Cheers.

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

I for one am struggling to understand why so many think this is a racist/sexist statement. If we remove the racial/gender references, the statement is clearly true:

I would hope that a wise X with the richness of experiences would more oftent than not reach a better conclusion than a Y who hasn't lived that life.

Consider:

A The statement is always true provided you believe X = Y

B It would also be true if you believed that X>Y (racist/sexist belief).

C It might be false if you believed that Y>X (racists/sexist belief)

It follows that the nominee's belief in the statement is entirely consistent with a belief in either A or B.

Although I haven't studdied any of her judgments in detail, a more common sense interpretation of why she included a reference to race and gender, was to acknowledge them as issues and make the point to those with racist/sexist beliefs, that a wise/experienced person from either/both of those demographics would still make a better decision than an unwise/less experienced person from any other demographic (including a white male). Whilst it would have been prudent for a judicial officer to avoid acknowledging the existence of racist/sexist attitudes in the context of a judgement, the statement is plainly consistent with a non racist/sexist belief system. Without more, the critics of the nominee ought to be a little slower to judge her.

As to the comments on judicial activisim, some of the posters seem obsessed with the idea that it is wrong for judges to use their own judgment on a case by case basis. However, there is no alternative to judges using their own fallible human discretion because:

1) Whilst precedents are used to establish consistency in the rulings of judges, the value of precedents is profoundly limited because facts in all cases vary. A lower court will not be bound by a precedent if it can be convinced that the logic behind the ruling in the earlier precedent would have been different if made in the context of the facts in the later case. In every case a fallible human judge has to consider: "Would I have ruled differently in the previous case if the facts before me were those before me today?"

2) Judges regularly have rule on legislation which is poorly drafted and/or open to alternate interpretations and there is no viable alternative for them but to 'interpret' the law. When they do so, they are unaviodably making law, and to the extent the law has to be 'created' it inevitably reflects the background and prejudices of the judge in question (who can only create a 'just' law in the context of what he/she believes is just). Such judges are often labelled 'activists' by those who do not like their decisions, but the dissatisfaction of critics just as plainly reflects the critic's own prejudices and background.

Ultimately then, whilst it is inevitiable (and appropriate) that elected representatives want to know about the underlying political beliefs of the judges they appoint, a degree of activism in judges is inevitable no matter what their political persuasion.

Kalin1,
Your XY argument boils down to:
Sotomayor said that wise people make better decisions than not-wise people which is true so what's wrong with that.
Trouble is that she cast herself as wise and white males as not wise.
(This is the "If we remove the racial/gender references" part which we are conveniently meant to ignore).
If any white male had made the opposite case they would of course be hounded out of office but every progressive is twisting themselves in knots trying to justify Sotomayor saying it.
It's embarrassing to watch and would be laughable if the stakes weren't so high.
<<Without more, the critics of the nominee ought to be a little slower to judge her.>>
Here's more...
http://www.discoverthenetworks.org/individualProfile.asp?indid=2396
I hope you can read the above article, unlike the woman who failed her law exam because she couldn't read.
Never mind, Sotomayor declared her illiteracy to be a disability and so she was passed anyway.
Then there was the blind man who failed his pilot's exam...just kidding,
but this is where you end up when you follow Sotomayor down her yellow brick road to the relativist swamp.
But I can see you've already taken up residence there.
Summing up the progressive's "argument"...
Diversity is good.
If Sotomayor is on the Supreme Court it will be more diverse.
Therefore it is good that Obama nominated her.
If she makes decisions that increase diversity, even gooder.
Anything else doesn't enter into it, let alone reason or logic.

Dear KMB,

There are some posters on this Forum
from whom you get a glimpse of
the fullness and wholeness of life
in general. Posters who craft their
statements with harmony. Statements
which allow space for reflective
insight, and which yield their wisdom -
and richness, layer by layer.

I get the feeling that you could be
such a poster - if you set your mind to
it.

Foxy,
That's the politest rebuke I've ever received.

Dear KMB,

My pleasure.

I've got to admit - the mere fact that you
don't preach - impresses me.

Living in Sydney, the Roman Circus is never too far away. Yesterday, Friday, I attended the Coliseum, on the 23rd Floor of Queens Square, in the Blood Red redecorated High Court. I saw the latest travesty of justice played out, with three High Court Justices playing Judges, and throwing the usual Christians to the lions.

As an example of man’s inhumanity to man there could hardly have been a better example. At enormous cost, for the place was full of these funny little men, with dead sheep on their heads, justice was denied. No reasons were given, because it was just a leave to appeal application. The bit that really gives me the pip, is the pig ignorance, of the three serious people who made the decision. One was I am told Justice French. These highly paid individuals, can do right and choose to do wrong.

To do right, all these people had to do was say: Has there been a jury trial? Answer: No. Answer: Well Ping ( polite the ng should be ss) off and do it properly according to the Constitution before you come back and annoy us again. We Order: Under S 44 Judiciary Act 1903 that there be a New Trial, in the Federal Court of Australia with a jury of 12, paid for by the Commonwealth, in accordance with S 79 Constitution, and if the parties can find an error of law, in the verdict of the jury, then come back to us. Costs against the Commonwealth.

Instead, these wishy washy highly paid snobs, gave an indecisive answer. The Commonwealth is supposed to be a Model Litigant. Ha ha ha, de hardy ha. With a stacked deck, the Judges paid by the State to serve the State, how can the Commonwealth lose. Only by separating the power of Church and State. If Church and State were separated, as they were before 1970 in New South Wales, when jury trials were as of right, Christians would not have to be regularly fed to the lions in the High Court. The court could be Royal Blue