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Thursday, June 18, 2009

Review of Comparative Domestic Constitutionalism: Rethinking Criminal Procedure Using the Administrative Constitution – Harvard Law Review

NOTE REVIEW[i]

 

 Review of Comparative Domestic Constitutionalism: Rethinking Criminal Procedure Using the Administrative Constitution – Harvard Law Review[ii]

 

by Emil Angelo C. Martinez[iii]

 

                The author of the note featured in a recent issue of Harvard Law Review entitled “Comparative Domestic Constitutionalism: Rethinking Criminal Procedure Using the Administrative Constitution” solely proposes policy restructuring and modification of procedural approaches in criminal law using the framework of administrative constitutions. The author also tries to delve on the demarcating differences between administrative law procedures and criminal law procedures as well as the praxis of merging and confusing the former and the latter as applications of similitude wherein two different branches of jurisprudence are matters of utmost controversy.

                The author begins the Note by introducing the most important American Law with regards to administrative and criminal procedures done in agencies and courts, the Administrative Procedure Act. The Administrative Procedure Act (APA) provides constitution/s for administrative procedures exercised by agencies, by which such constitution regulates by limiting and/or mandating administrative operations/procedures to be done by agents that separate administrative procedure constitution from criminal procedure constitution. Another major point of the author concerns with how procedures are being applied to a variety of cases like in agencies which deal a myriad of differing subjects. The author discusses the transsubstantive nature of administrative law procedures which are “virtually applicable to all agencies that may be, and often is, supplemented by substance-specific procedures that Congress and agencies establish”. This means agencies execute administrative actions by administrative procedures which are specified only to befit those said agencies. But the author points out that the administrative procedures per se don’t vary from agency to agency but the requirements to be followed to execute such procedures. Hence, what differentiates an agency’s procedure with that of another is only the set of requirements needed to enforce such actions. The author cites the example of the FTC (Federal Trade Commission) and the EPA (Environmental Protection Agency) which by obvious reasons are different agencies of fields hence approaches to exercise administrative procedures are not entirely and absolutely the same because cases on trade, say, tariff or quota issues, are different from environmental matters, say, deforestation.

                The Administrative Procedure Act is primarily the magna carta of agencies to exercise federally bestowed executive roles. The law stipulates that the agencies are given the authority to enact rules as exercise of executive function within or without the inner workings of the agencies. Adjudicatory matters are also within the authority of the agency to resolve related controversies. Here, the author entrenches the role of courts in determining the reasonableness of agency decisions through “review/s of reasonableness”. As implicit as it is for the author not to stress its importance (maybe to avoid straying from the crux of the matter herein), we can see the judiciary checking on the executive system. This judicial-executive relation prevents misjudgement on the part of the agencies which could prejudice rights and legalities in the federal state. By which constitutional need of checks and balances, the court if found reasonably agencies’ errors of judgment can overturn the decisions made by the said agencies. The author however finds this judicial check too directly imposing rather than suggestive or commanding because the courts lean towards direct imposition of rules for the agency personnel/actors to follow.

                To contrast administrative procedures with criminal procedure, the author points out that the latter, unlike the former, has no substance-specific supplements out of transsubstantivity, rather a “uniform code of procedures” applicable to a diverse set of matters or fields. Criminal law procedures so uniform leave no room for substance-specificity. To cite an example, the author presents status quo where in the Unites States, criminal procedure for murder is applied to rape cases. For the sake of clarification, the author outlines two important questions in order to resolve such discrepancies: When should procedure be transsubstantive? When should be substance-specific?

                The author presents three (3) benefits of substance-specificity in procedural regulations. First, it “generates a number of interrelated benefits....may be tailored to the particular subject matter under investigation, increasing efficacy”. To put the author’s context mildly, it means closed interconnectedness of matters investigated can benefit future or differently existing investigation due to related findings and/or resources present at hand, hence, increasing efficient procedures. An EPA investigator can scan and use files of previous investigations which have close relation to a present inquiry because APA-provided constitutions offer substance-specific (at times, case-to-case) procedures, not generalized ones, say, previous procedural actions on deforestation can be used to guide procedures for prosecution of illegal loggers, and not that procedures on forest-related concerns are to be used for animal-related issues. Second, it “conduces to efficient resource allocation”. Since agency officials have previous records of cases related to theirs, resources to be allocated are efficiently used because previous related records can lessen expenses of investigators for supply of resources. Last, it “increases fairness by providing interested parties the opportunity to voice their concerns effectively given the substantive issues at play”. The APA requires agencies to afford public opinions prior to implementation of regulations on issues/matters involved. One downside of this APA stipulation is that public views or opinions, no matter how more reasonable than that of the agencies’, cannot overrule agency decisions or have no vetoing power because in the end, the agency has the last say – and whenever public opinions have ruling power, if they are for or against an agency policy promulgation, can impede the rights of the agencies to enact or promulgate policies or regulations, causing stalemate for both sides if cases so do exist.

                The author on his further contentions describes transsubstantive similarity between administrative procedures and criminal procedures currently being exercised by authorities, i.e., courts and agencies. But the author substantively points out that it shouldn’t be the case because administrative law and criminal law are entirely different subjects. In the US, administrative law procedures are transsubstantive and substance-specific, which is a considerably reasonable policy structure because agencies where these procedures are undertaken vary from one another – so specificity is an utmost importance. What the author wants to achieve in the Note is to re-evaluate and/or as much as possible amend criminal law procedures based on given constitutions or guidelines which are transsubstantive but not case- or substance-specific. The author wants to resolve the problem of procedural approach being executed on criminal law and administrative law constitutions. Both branches of jurisprudence in fact have the same elements, that is, both have variety of fields. By obvious title of the Note, the author wants to reconstruct criminal law procedures basing on how administrative procedures are done. The author sees the problematic discrepancy of criminal procedure in relation to the administrative procedure. Criminal law procedures obviously apply to all kinds of criminal offenses and these crimes aren’t all the same, they all vary – criminal procedures don’t only dwell on a single crime or one set of crimes, they encompass every crime in the federal state. Here, we see the close similitude of administrative law procedures and criminal procedures not on transsubstantivity but on case- or substance-specific. The discrepancy of criminal procedure compared to administrative procedure is that its uniformity or transsubstantivity without case-specificity can affect policing mechanisms and court rulings. The author gives the example of issuing warrants to search locations, say, crime scenes in comparison to rape cases. If the police issues no warrant for a specific case, all cases of crimes hence need no warrants since procedure followed by police are uniform as emanated from current criminal procedures. It is therefore clear the major difference of treatment and approach of issues between administrative and criminal.

                Courts of all levels of the Union have major significance to insuring properly executed procedures both in criminal law and administrative law and binding constitutions. As mentioned earlier, intervention of courts can both be reasonably helpful and encroaching. Here, the author projects the courts’ role on administrative procedures and which is problematic. Courts regulating criminal procedure have “process-imposing” rules that either mandate or forbid agency actions. On the other hand, courts regulating administrative procedures have “process-generating” rules that only suggest or aid through recommendation and important outlines of presentation to in order for the agencies to achieve justifications on their own. Process-imposition and process-generation are entirely different because the former is a directly imposed rule from a court that agencies should follow on matters being adjudicated or investigated while the latter is a recommending power from the court to aid agencies promulgate rules to act on. The crux of the problem is that judicial oversight and the use of review of reasonableness can just be judgment out of whim. Unlike the administrative constitution which offers hard look review on administrative agencies, courts contribute more to the efficient procedural process of agencies where they have lesser depth and breadth of expertise than the fields where they have better knowledge. Courts hence tend to be imbalanced on how to review cases on criminal procedures and administrative procedures. Also, process-imposition can impede openness to public unlike process-generation for administrative procedure which offers (however questionable) otherwise.

                In the end, what the author suggests to achieve on his Note is to remake and outline the framework criminal procedure constitution by basing from current administrative procedure.

               



[i] Contents are entirely interpretations of the reviewer. It is subject to correction, question and response. Review of the author does not encompass all ideas presented on the Note to avoid instance of extremely moot and academic discussion. Limited points presented are factors of the reviewer’s limited ability.

[ii] The author cites Comparative Domestic Constitutionalism: Rethinking Criminal Procedure Using the Administrative Constitution – Harvard Law Review as general source of information.

[iii] Bachelor of Arts in Political Science, University of the Philippines-Visayas

Monday, June 15, 2009

As the world sinks, Singh stays – in power and in popular confidence: why emerging economies are assets, not drawbacks

COLUMN


by Emil Angelo C. Martinez 


   >>>>>>>In global capitalism (un-cue emotional rhetoric or oratory, nay, “attempted” emotional rhetoric or oratory), levels of economic power and capitalist strength and capability are inevitably variant – such diversity, however, balances global competition – but if the system of hierarchy begins to be self-aggrandizing and imperialist, nay, subordinating, the weakest are left behind – some thrive to put themselves in virtually exclusive economic echelons, while some are too beaten up that they just exist under the mercy of those superior to them. But the rising fears of the upper pantheons of capitalist super-powers, would they be principled by communism, socialism, populism and the like or what not, are far greater after the Second World War – rising economies are becoming stronger competitors while economies in the Third World are striving positively to achieve the Utopian pedestal of economic progress. European super-economies like the UK, France, Italy, Germany and the rest of the EU are breaking the streamline of global competition – maybe because these countries are the victors of the Second World War. The West’s best representative to the group of super-economies, the United States, is the leading spearhead of economic dominance while the rest of the Americas like Brazil, Venezuela, etc are entering the spotlight of global recognition in the ambit of super-economies. However, the surprising fact of the matter is that these super-states became flawed (either by reasons of too much globalization or too much confidence that nothing will go wrong) even before the advent of the current global recession. These nation-states embraced the totality of globalization, along with it, global capitalism that transnational marketing, say trade, flow of finance or credit flow, etc, have been fateful facts of economic progress. What they didn’t know is that what caused them to be big can cause them again their downfall. So, being an emerging economy which is not so globalized but self-sufficient rather than self-exporting became invulnerable to the perilous and vicious cycle of economic collapse globally. Protectionist ironclads of some countries shielded their economies against the domino effect of global economic downfall as credit crunch imbalanced capital flow, as transnational banks lost their investments and run out of money that they brought down with them the country they are in. That’s the problem of globalization – yes, it does better off people globally but at the same time, it burdens them. So, being a rising market competitor can have an upside after all in the race for super-economy.

                Talking about emerging economies, the best examples are in Asia, particularly China, India and South Korea. China became a booming economy because of unlikely fair play – they export more but accepts less in credit and in goods/services. South Korea, ironically though plagued with all-out corruption, sought narrow ways to progress their economy. India is the best model of becoming a super-economy because the guiding principles in their thriving for a powerful economic force are based on well-structured policies. One major upside of government policies in India is that balancing globalization and protectionism can be both an asset and a proactive defense against the perils of global imbalances. Government supervision of some firms can regulate economic activities, leaving behind abusive misuse of authority in workplaces and business hubs. The culmination of the Indian election is rather a positive outlook for a fruitful India – Manmohan Singh’s re-election is another set of economic plans for the country where well-crafted economic policies can, in the end, better off economies around the world. As Ms. Moyo of the 2009 TIME Most Influential People would put it, government action always has the largest stake in assuring and reassuring whatever actions they are in the very first place commanded to do. If only governments around the world will leave behind binge-greed and corruption and bury them, nothing will go wrong. If democracy can decide and rule over tyrannical authority of the higher powers, economies around the world are run by principles rather than by political interest.

                But running towards the global stage for protestation of super-economic capability can be a rigorous process. Here, India’s ability to construct and/or reconstruct wise plans on how to cope the demands of the global community is best appreciated as a beauty of good governance and effective economic technocracy. As globalization continues to permeate nation-states, India goes with the trend. Being one of the most-English speaking nations in Asia, India makes safe assets out of the naturally dangerous globalism. India has been an effective and most-sought call center investment. India is making safe profit out of a precarious globalization. As the later centuries (especially the 21st) are technological revolutions where innovation and practicality necessitate human focus to solving predicaments of global warming and recession, India plays better than any emerging economies. India’s technology, telecommunications and to mention the recent rise of the Nano cars proved to  be early responses to the alarming situation the world is in. India, therefore, makes itself globally known both by going with what is deemed necessary and profiting out of it. Say it a wise move but sure will it impact. As Singh rises while the rest heals, India’s wisdom is just a clever investment in times of usual demand-supply operations and at the same time defense system against external threats of globalization.

Power Politics – the vindication of Iran after polls can reshape its future – good or bad

COLUMN


by Emil Angelo C. Martinez


Whoever clinches the nation’s only democratic way to jettison someone to hold the highest position, the future of that country may never be the same again. But choices being made in the table and in every polling station, in every precinct around the country, every ballot cast may not be as expected will turn out to be. Popular democracy and the ones chosen have stakes to sovereign future.

                Iran elections this year have been the most-talked about exercise of citizenship in the country. Iran is worthy of credit for as though being young as a democracy and as a nation, its people took a little time to understand that democracy is important for every individual’s fate, so much more that populism can never make a democracy and an international respect to ground principles as everyone goes to vote – again, everyone must have a stake. And what is significant on this national movement is that people become less gullible to deceit of the relentless manipulators, that the masses and all the rest in its entirety know what necessitates them, their country and the global arena – Iranians are weaving revolutionary versatility and intellectualism when it comes to critical need of leadership that deems righteous credence, not paid vote. But there’s no absolute choice for an entire country to hang on to – but the divisiveness is imminent – it’s either the extreme-right, populist Ahmadinejad or the reformist-moderate Moussavi; either way can craft new paths for Iran to follow through. Consider the cases (for purposes of deeper understanding and in aid of positive prediction): (1) Mahmoud Ahmadinejad’s re-election will not be the same with his current hold of power but whatever may come out of it isn’t actually new at all since his unpopular international reputation gets worse before it gets better and his people are responding to the unbeneficial effect of their country’s isolationist behaviour and he may retain his anti-Semite power play that can compel Israel not to make peace with his (Ahmadinejad’s) allies who seek one for statehood, worse, that his agenda of “wanting-to-be-line-North Korea” can bring him down, both local and international; (2) Still, local reactions can gain him no support because most are tired of his backward policies and dangerous “terroristic” verbiage – that’s why the opposition is gaining an even more momentum of support as a hope to replace him. The case, otherwise: (1) Moussavi’s victory can better off Iran in every angle: if seated, the moderate Moussavi can be a good friend of the Knesset and Washington since diplomacy and multilateralism is now a real deal (What makes Ahmadinejad a downside partner is that he still holds anti-Americanism, secretly but obvious.); Moussavi’s “not-extreme but reformist” views can end to nuclear hide-and-seek with the international watchdogs and friends, Iran can rather help combat local and international atrocities like terrorism (to mention, too, state-sponsored) and insurgeny, better, peaceful negotiations can be big alternatives, not always the use of impunity and; if Moussavi takes over, shift of focus from loathing enemies to befriending and intgrating (which leaves us Egypt to handle later), shift from underground source of finance like arms dealing to legitimate market economy, you know, the not-illegal ones.

                There you have it – the lugubriously foreseen and/or predicted events. OH WAIT! BREAKING NEWS! AHMADINEJAD WON, AHEAD OF MOUSSAVI FOR MORE THAN 30% OF THE VOTES CAST! It’s either “Oh crap, damn it! Screw you!” or “Son of a mother-hoe, I just pooped on you!” Either way works. The thing is almost everyone (except Mahmoud’s die-hard fan clubs, pretending loyals and sycophants) is fed up of him – the situation necessitates a new one, the less harsher one -  a new kind of leadership that neither endangers people nor forgets them. All it takes is a dose of honest elections, good choice and responsible discretion that one way or another can make a big difference during elections, not crappy and nasty surge of fraud and selfish interests that go nowhere but to the pig sty. Blimey or no blimey. Rubbish or no rubbish. System: malfunction. Control, out!

 

P.S.        This note aims to establish clarity and academic discussion regarding serious political activities in                the Middle East/West Asia. Any unintentional and/or deliberate misuse of frivolity shouldn’t be      taken out of context, nothing more, except for addenda of entertainment and what not.

Wednesday, June 10, 2009

Reposted from: "Will Adam Lambert's Rolling Stone Interview Hurt Or Help His Career?" by Lyndsey Parker


So this week, Adam Lambert's salivatingly-awaited, serpentine-accessorized Rolling Stone cover issue comes out. And I mean thatliterally. Yes, it's in this RS interview that Adam comes out of his fabulously appointed, leather-pants-filled closet to announce what all the world already knew: That he is (gasp!) gay. "I don't think it should be a surprise for anyone to hear that I'm gay," Adam correctly states, adding: "I'm proud of my sexuality. I embrace it." (As if there was ever ANYTHING about Adam Lambert's public persona that seemed shy or self-effacing!)

Yeah, yeah, I know--not so shocking. Not nearly as shocking as Lambert losing on Idol, really. It's not like Adam ever even slightly denied that he is homosexual. This is a guy who, on the most excitingIdol finale ever, not only performed in drag-queen-supplied Bob Mackie angel wings and platform Kiss boots from his "private collection," but also took on the Freddie Mercury role for the gay-rights Queen anthem "We Are The Champions," after all.

But Adam's sexuality was likely something he wasn't allowed to officially discuss before now (past gay Idol contestants like R.J. Helton, Jim Verrarros, and Danny Noriega have all publicly claimed that the show ordered them to keep mum regarding their sexual orientation--how very "don't ask, don't tell," huh?). Or frankly, his sexuality just wasn't something he felt was necessary to discuss within the context of the Idol competition. As Adam says in his RS interview: "I was worried that [coming out] would be so sensationalized that it would overshadow what I was there to do, which was sing. I'm an entertainer, and who I am and what I do in my personal life is a separate thing."

However, media attention regarding Adam's personal life has only intensified since AmIdol wrapped up last month, from the jillion tabloid photos of him holding hands with reported boyfriend Drake Labry, to the jillion outcries from gay groups and, um, Perez Hilton demanding that he officially come out and shout, "I AM GAY!" through a glittery, rainbow-striped bullhorn. Such public pressure seems odd, since it's not like anyone ever insisted that Taylor Hicks or David Cook hold press conferences to state on the record: "Hey everybody, I dig women." Go figure.

But anyway, now that Adam has finally addressed all the speculation and the "pink elephant" in the room, in his characteristically flashy and flamboyant manner (just LOOK at that cover photo!), I sincerely hope everyone can just move on and remember what an amazing and unique talent he is. Hopefully, by the time Adam's debut album comes out later this year, the public focus will be back on the important stuff: you know, his music, his voice, his nail polish, his awesome hair, his guyliner, etc. Anything but his gayness. If that turns out to be the case, and this Rolling Stone cover story--which hits newsstands only a few weeks after Adam's Idol season, as opposed to the six long years it took for Clay Aiken to come out on the cover of People--finally puts all the gay gossip to bed (so to speak), then this is a very shrewd career move. But I will admit that I'm worried it could be a career-killer. I had the same worries when that splashy Entertainment Weekly "Is He Gay?" cover story came out only a week or so before the Idol finale, fearing that it would ruin Adam's chances. I'mstill not sure it didn't...

Yes, I know that almost immediately after Adam lost on Idol, the show's powers-that-be went into PC spin-control overdrive, emphatically asserting that his shocking second-place finish had simply come down to a matter of the public's musical taste, and that it had absolutely nothing to do with religion, sexuality, or politics. Except...it probably DID. Let's be real, now.

"It shouldn't matter. Except it does. It's really confusing," Adam tellsRolling Stone. Okay, okay. I am sure there were several other reasons why Adam lost on American Idol. I do deeply want to believe that--as Ryan Seacrest also hoped out loud on Late Night With Conan O'Brien last Friday--the majority of Americans simply voted for theIdol contestant whose SINGING they liked best, not whose lifestyle they approved of most. But while it would be overly cynical to assume that Adam's rumored homosexuality (and by "rumored," I mean "completely assumed due to widely circulated, Bill O'Reilly-criticized photos of him smooching other pretty-boys in drag") was the main reason he didn't win, it would also be naive to assume that it wasn't a factor at all. Did the EW story, however well-intentioned (it was penned by openly gay, very respected journalist Mark Harris), make matters worse? I don't know.

I just hope this Rolling Stone article (in which Adam even controversially confesses a Kris Allen crush, saying, "He's the one guy I found attractive in the whole group on the show: nice, nonchalant, pretty, and totally my type--except that he has a wife") helps more than it hurts. I don't want Adam to forever be known as just the "Gay Idol." He's so much more than that. In the end, we'll just have to wait to tally Adam's album sales figures to see if this tell-all article was a turn-off to more conservative record-buyers, or if it indeed refocused the attention on Adam's music. Most successful openly gay celebrities--Elton John, Rosie O'Donnell, Ellen DeGeneres, George Michael, even Clay Aiken--have only come out well into their careers, after developing such strong fanbases that they could afford to lose a few fairweather fans put off by the news of their homosexuality. But Adam, possibly the bravest and boldest Idol contestant ever, faces a unique challenge by (as Kara DioGuardi recently worded it on The View) pretty much being out from the beginning.

I just hope unapologetic statements in Rolling Stone like "I've been living in Los Angeles for eight years as a gay man" don't make it even harder for closed-minded people to accept Adam.

And although Adam insists in his Rolling Stone interview, "I'm trying to be a singer, not a civil rights leader," I still hope that--as Adam so passionately sang during Idol finale week--a "Change Is Gonna Come" in this country, and that this article is a start.

Tuesday, June 9, 2009

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Monday, June 8, 2009

Hostility on the rise - North Korea's power-play through journalists' conviction

Neither a stick nor a carrot works for the North - but the growing hostility and diabolic pressure both for the North Korean regime and the rest of the under-alert nations especially the United States are enough factors that could bring us to an unnecessary war. Kim Jong-Il's nefarious actions, on-going missile tests that had always put his own country and the rest of the world under paranoid provocation that seeks to predict a new-age Cold War are becoming even worse than the last months - worse - the peaceful ways of negotiations and diplomacy are seemed to be misconstrued - Kim is taking it negatively, thinking that the international community starts to bully his country and the need to fight back is imminent - by striking deadly nuclear warheads that could annihilate anyone beyond its border. But the more intensifying and pressuring news is the court verdict of 12 year imprisonment of two journalists caught a few months from now near the China-North Korea border. The even graver news is that the North might be using the sad predicaments the 2 journalists are in to make edge against US threat of sanctions. In such issue, the North may be ahead of negotiation pole as US might bargain the release of the journalists, Laura Ling and Euna Lee, with no sanctions at all to North Korea as a return. But UN and the rest of provoked countries like China and the neighboring South Korea could have less setbacks on their plans to pressure North's hostility - but if these countries are brought to the negotiations with US, the release of the 2 journalists can be a bargaining chip in exchange for no-sanction policies from the said countries. For now, negotiation rather than impunity is the safest move to follow - but the North isn't an easy enemy to caught up with.

Standing way behind something is unfulfilling - why being off the net makes me sick.

Missing a lot of episodes of House, The Office, The Tonight Show and the rest of my fave TV shows is a heavy burden to bear - even heavier to be dramatic and having the feeling of void and missed doses of sacred episodes that just make your life reasonable to enjoy (or live). But by my personal evolution through adaptation and tolerance (due to crappy channels that aren't NBC nor FOX) with full-blown understanding that the periphery is always behind such opportunity, I am relieved at times to have it lived by - by always moving forward with the saying that "Hey, this isn't New York, so get along with it!" Fair enough. Very truthfull and honest - fairly enough - just a mild drizzle, nearly rain in my parade. BUT missing things I usually preoccupy with on the Web (Harvard Law Review, Time, The Polity Post, etc.) is far worse than just a drizzle - IT'S A THUNDERSTORM IN MY PARADE!. The point of doing personal mayhem is this - missing a lot of what's going on aroung the world, news per se, international especially, makes me unfulfilled and unsatisfied. I personally dismiss ignorance out of whim and unpurposive nature, pretentious know-all complex and other forms of self-proclaimed, self-aggrandized intellectuality (which instead are unconscious dumbness)  - the necessitating actions of personal role in global agenda and affairs are important milestones of global responsibility as a global citizen. Anyway, as I was saying, it really pisses me off whenever I am left behind on international news (take note: the unwanted predicament risks my passion on international affairs) - so much as missing episodes of our loved shows, missing "a lot" of them, a lot of the Simpsons, Family Guy or even Chelsea Lately - honestly, everyone feel this once in a while. 

Tuesday, June 2, 2009

 
   
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Monday, June 1, 2009

Obama's Vatican Pick: Boosting Hispanic Catholics

 
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Sotomayor In Constriction: Belligerent past, Conservative backlashes, Supreme Court under pressure

Not so much a surprise for Obama in nominating individuals under the principle of diversity in his administration/government. But the recent nomination of Sonia Sotomayor to the nation's highest court somehoe stirred not just packages of surprising revelation but critical and widespread opposition from many, Conservative Republicans, especially. The major issue on the table is very racial, considering Sonia Sotomayor, a former Court of Appeals judge, will be, if ever appointed by the Senate, the first Hispanic to be in line with the justices of the US Supreme Court. The first days of the news were positively treated as another historic integration of government officials under of course Obama's umbrella or whatever that is. But because of some extreme captious behavior of some uncovered ghastly past of Sotomayor herself - that she had some racist and sexist remarks. Such expose' is hurting the process of her appointment - if Democrats get the bait, she could hardly get the prize. Even her centrist and/or bipartisanship didn't divert the disclosure whereby some see it as positive future in judicial rulings because there will be no biases on whatever political view one holds. But the racial and sexist remarks of her (saying that she as a female Hispanic with experience has better judgment than two White males, something like that) is seemingly the hottest and significant factor in her appointment, worse, another negative backlash for Obama - that he wants a racist and sexist justice in the highest court of his democracy. Counter-critics of Sotomayor defends by saying that her past remarks shouldn't be a generalizing factor to judge her competence in the Supreme court, although this argument seems to be weak, defense of Sotomayor is hardly convincing her critics to understand that people err sometimes. But by weighing the issue at stake, critics have the thorny point on this - racial and gender biases can affect court rulings, conclusive enough to say it's futile to put a bipartisan judge but a racist/sexist into the (take note) "highest court in America". Conservatives from every corner are gaining dangerous momentum against Obama and Sotomayor supporters and Democrats seem to have no counter-measure against the influence it may bring to the appointment process. In the end, whoever wins this one, come what may.