What if there ISN'T another Thurgood Marshall right now?

[Doctor_J]

Much of the criticism of the choice of Sotomayor is that she's safe, mainstream - no Thurgood Marhsall.

Can someone more dialed in on these things tell me who the current potential (if that's not an oxymoran) groundbreakers/hellraisers are? Give me one or two viable nominations that would qualify as anti-Scalias.

[Redbear]

1. I strongly support Judge Sotomayor's nomination

but when the next opening arrives, I hope the President chooses Judge Diane Wood of the Seventh Circuit.

[asphalt.jungle]

2. According to Turdley the problem is that she is like Justice Thurgood Marshall

in that they are both intellectually deficient non-whites.

[Dawgs]

3. What makes you so sure that she won't turn out to be another Marshall?

:shrug:

[Doctor_J]

4. The rulings to which I've been pointed seem pretty centrist,

or maybe mainstream would be a better description. It's possible that she could, but people on the left (real populists) whose opinions I respect, like Hartmann, don't see her doing for gay rights what Marshall did for blacks' rights.

[ClarkUSA]

5. Which cases have you studied that led you to this conclusion?

[4lbs]

6. It's probably because she tends to honor the US Constitution and the laws passed by Congress.

So, as long as Congress and the US Constitution don't give full gay rights, she'll likely rule the same, upholding that law, or lack thereof. Thus, likely the statement "there's no law on the books granting those rights or protections, so this court cannot."

She's also big on "burden of proof" laying with the plantiff, since they are the ones seeking the court's time. If she feels that the plantiff hasn't provided enough to adequately prove their charges, she'll rule against the plantiff.

Yes, it stinks for those who feel the judicial branch should be more active in rewriting law and creating new ones with rulings, but she doesn't feel that way. Ms. Sotomayor doesn't feel the bench should be used to "create" law, but rather interpret and either uphold or strike down what the legislative branch passes. That's exactly what the US Constitution states for the responsibilities of each branch. The legislative branch (Congress) makes the laws, and the judicial branch (the courts) interpret those laws when cases challenging them appear before the justices, and either uphold or repeal those laws with their rulings.

What will be important is when someone brings laws/policies like DADT and CA's Prop 8 before the USSC. Then she'll be able to rule whether those two are constitutional or not. However, she's not going to rule on other somewhat related cases and use that to try to strike these two down. She wants to rule on the case(s) directly, and her rulings to be applied and directed only towards the case at hand.

For example, if a lawyer brings a case before the USSC charging that his client, a gay man, was denied a promotion and transferred to a less desirable branch of a corporation because his supervisors and boss(es) found out he was gay, then she would rule directly whether that violated his equal protection rights and was discriminatory. However, she would want that ruling to be applied only to that case, and not use it to try to make a statement about DADT or Prop 8. She would likely argue that the climate in a private corporation is different than that of the US military, and/or a state granting legal marriage rights. It will be this way as long as Congress hasn't passed a law granting full gay rights everywhere in the US.

It seems we're soon going to get a direct challenge regarding Prop 8 with the Boies-Olsen filing.

[ClarkUSA]

7. Judge Sotomayor is getting a thumbs-up by gay legal activists (link -->)

Link: http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8434851&mesg_id=8434944

They seem to have no complaints or concerns about her.