Progressive Revival

Progressive Revival


Judge Sotomayer: Racist or Representative?

posted by Paul Raushenbush

Newt Gingrich and Rush Limbaugh are calling Judge Sotomayer and President Obama racists - and Democrats must be loving it.


Newt and Rush pulled out a quote from a speech given by Judge Sotomayer at a symposium called: Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation in which the Supreme Court nominee suggested that
experience does affect how a person might understand the law, and that there
might be an advantage to adding a wise Latina voice into the mix of judges in
America given that they are woefully underrepresented at this point.  

Here is the surrounding paragraphs of the sentence (in italics) that has sparked the outrage: 

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.

Let us not forget that wise men like Oliver Wendell Holmes
and Justice Cardozo voted on cases which upheld both sex and race
discrimination in our society. Until 1972, no Supreme Court case ever upheld
the claim of a woman in a gender discrimination case. I, like Professor Carter,
believe that we should not be so myopic as to believe that others of different
experiences or backgrounds are incapable of understanding the values and needs
of people from a different group. Many are so capable. As Judge Cedarbaum
pointed out to me, nine white men on the Supreme Court in the past have done so
on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that
not all people are willing to give. For others, their experiences limit their
ability to understand the experiences of others. Other simply do not care.
Hence, one must accept the proposition that a difference there will be by the
presence of women and people of color on the bench. Personal experiences affect
the facts that judges choose to see. My hope is that I will take the good from
my experiences and extrapolate them further into areas with which I am
unfamiliar. I simply do not know exactly what that difference will be in my
judging. But I accept there will be some based on my gender and my Latina
heritage.

 

Newt and Rush seem to believe that there is some platonic ideal of justice that can be constructed, regardless of the subjective lens of the interpreter.   History proves that not to be true and that having different voices in the room improves the way justice is meted.  Just as Thurgood Marshall’s presence on the bench was
important to bring justice for African Americans in this country after years during which a court made up of only white men remained blind to racial discrimination, so will it be
important to have another women and a Latina - particularly when she has the credentials that equal any candidate for the position. 

Funny that a women who was good enough for the Republican
President George Bush 41 is now not good enough for the current Republican
party which will continue to shrink as Latino, Black and other minorities
realize that the tent in the GOP has grown very small – and very white. 

Update:

This post from Huffington about Justice Alito reinforces my and Judge Sotomayer’s point:

Additionally, Sotomayor’s critics are up in arms over the fact that she has admitted that her ethnic background has an affect on her decision making process. Who does she think she is? Well, as it turns out, she probably thinks she’s being very similar to Justice Sam Alito:


ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. … And that’s why I went into that in my opening statement. Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position. [...]

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.



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Tricia

posted May 27, 2009 at 6:38 pm


This whole blog is disgusting. “Progressive” Christians are first and foremost hard-political partisans of the collectivist and Marxist breed. You people pick parts of the Bible that make you feel good and munch from them like a buffet, while ignoring the parts that don’t fit into your self-created dogma.
Shame on you and shame on this website for giving your false doctrine a soapbox.



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James Gilmore

posted May 27, 2009 at 7:42 pm


You people pick parts of the Bible that make you feel good and munch from them like a buffet, while ignoring the parts that don’t fit into your self-created dogma.
Given that your name is Tricia I’m guessing you’re a woman, so tell me: Does your church allow you to speak – at all – while in the church? If the answer to that question is “yes,” then it’s quite clear that you’re picking which parts of the Bible “that make you feel good” and ignoring things like 1 Corinthians 14:33-35, which very clearly states: “As in all the congregations of the saints, women should remain silent in the churches. They are not allowed to speak, but must be in submission, as the Law says. If they want to inquire about something, they should ask their own husbands at home; for it is disgraceful for a woman to speak in the church.”
Now, I don’t hold to the opinion that 1 Corinthians 14 is binding on churches, but then, I’m quite comfortable with the idea that some Scriptures are more applicable to contemporary life than others. If you’re going to say that every jot and tittle of Scripture must be understood as equally applicable and not a word should be ignored, then you should actually live that out and demand (through your husband, of course) that your church put in place the rules Paul very clearly states are a model for the church.



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James Gilmore

posted May 27, 2009 at 7:48 pm


Now to the actual point… please name the person who said this:

I don’t come from an affluent background or a privileged background. My parents were both quite poor when they were growing up. . . .
And that’s why I went into that in my opening statement. Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.
And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, “You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.”
When I have cases involving children, I can’t help but think of my own children and think about my children being treated in the way that children may be treated in the case that’s before me.
And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who’s been subjected to discrimination because of disability, I have to think of people who I’ve known and admire very greatly who’ve had disabilities, and I’ve watched them struggle to overcome the barriers that society puts up often just because it doesn’t think of what it’s doing — the barriers that it puts up to them.

The answer: Supreme Court Associate Justice Samuel Alito, during his confirmation hearing in 2006.
Now we will see if Rush Limbaugh and Newt Gingrich are intellectually honest people or hypocritical charlatans; if they are consistent, they will admit their error and drop this rather ridiculous line of argument. Given those two clowns’ track records, though, I’m not optimistic.



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Tricia

posted May 27, 2009 at 8:57 pm


James -
1. I don’t speak at church. I don’t attend churches with female ministers. I’m quite happy following the instructions of the New Testament church and letting my husband be the leader of our household in all things.
2. Justice Alito says that he “thinks” about his life and the lives of others in making his decisions, he doesn’t say that his ethnic background makes him “better” like Sotomayor said. Big difference.



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James Gilmore

posted May 27, 2009 at 9:29 pm


I don’t speak at church.
You don’t speak at all? From the moment you cross the threshold to the moment you’ve left the building, not one peep escapes your lips? Moreover, your church has a policy to that effect? That’s what Paul clearly expects if the letter of the Bible is to be taken literally. Paul doesn’t say that women shouldn’t be standing up and speaking in front of others; he says they should be silent. Are you?
Moreover – do you refuse to wear jewelry? Do you always wear a covering over your head? Those are also both prescribed by Paul for women in the New Testament – and that isn’t even getting into all those Old Testament dietary laws which, if you’re following the whole Scripture literally are binding on you. Did you have that shrimp cocktail at the last church Christmas party? You’ve just done something that is an abomination, on a par with gay sex.
Those of us who accept that a 2,000+ year old document just might have prescriptive aspects that are incompatible with 21st century life have no problem putting these verses in context. Perhaps it’s time that you admit that you, too, do some picking and choosing, and that the only difference between us is the verses we pick and choose?



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New Age Cowboy

posted May 27, 2009 at 10:43 pm


James Gilmore,
You’re not gonna get anywhere with Tricia. Trying to reason with hardcore right-wing Evangelicals is like talking to a brick wall. The Internet isn’t a good medium to engage any type of zealot or fundamentalist.
God has a place for all of us. I recommend engagement with these type folks in person via patience and tolerance.
You can’t reason with folks that refuse to employ reason. But in daily engagement we can behave with respect.



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Sam

posted May 27, 2009 at 11:53 pm


“Funny that a women who was good enough for the Republican President George Bush 41 is now not good enough for the current Republican party…”
What an INCREDIBLY irresponsible thing to say! This is not about her being a woman or Latina. Republicans don’t think gender and race is important – it’s about what’s going on in your head. The Democrats character assassinated Miguel Estrada precisely BECAUSE he was hispanic and a threat to their “identity” politicking. I think her original elevation to the court by Bush 41 is not really relevant. This is the highest court in the land, and we know a lot more about her now.
By the way, giving context to her quote did not make it sound better. She still comes across as racist.



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freelunch

posted May 28, 2009 at 9:23 am


Sam, I read the whole speech. It wasn’t racist. People grow up in different milieus. Hers was different than yours. Tricia also needs to read the speech. Both of you have jumped to unwarranted conclusions.
Motes and beams.



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Matt Mahall

posted May 28, 2009 at 10:16 am


She’s unquestionably racist. Any judge who had special empathy for whites and claimed that the white experience created better judges would be seen as a KKK member. We all know it’s true.
We are to judge people based on what they do relative to our written laws; we are NOT to stretch the law and fudge the law on a case by case basis.
The Democratic Party understanding of judges is that they are little kings who simply rule based on their own personal views. That’s not the American way or understanding of judges.



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freelunch

posted May 28, 2009 at 11:57 am


We are to judge people based on what they do relative to our written laws; we are NOT to stretch the law and fudge the law on a case by case basis.

No one ever claimed that the law was to be stretched or fudged. Despite claims to the contrary, appellate courts have the job of deciding how to balance competing interests. They have to decide how laws and rights that are in conflict are to be balanced. They always make law.
Still, it is interesting which justices are most likely to strike down laws. Paul Gerwitz and Chad Golder report their analysis in the New York Times:

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

And which ones are least likely to agree with a government agency. Cass Sunstein reports in the Washington Independent:

Breyer 82%
Souter 77%
Ginsburg 74%
Stevens 71%
O’Connor 68%
Kennedy 67%
Rehnquist 64%
Thomas 54%
Scalia 52%

Now, why are Scalia and Thomas the ones who are most willing to overturn the law or agency decision? I thought the right disliked activist judges?



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freelunch

posted May 28, 2009 at 12:00 pm


I garbled a bit of my post. The data from Sunstein showed the amount that the justice agreed with the agency. That is, Scalia and Thomas are the most willing to overturn a decision of a government agency. They barely defer to the rest of the government half the time.



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Sam

posted May 28, 2009 at 12:28 pm


freelunch -
Duh. They viewed the law as unconstitutional. What do you think “strict constructionism” means.



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freelunch

posted May 28, 2009 at 2:50 pm


Sam,
Then why did conservatives get so upset when other justices found that Jim Crow, segregated education, antimiscegenation laws, etc. to be unconstitutional?
I think, and those who assert it most loudly have confirmed, that ‘strict construction’ is a meaningless phrase that is bandied about by those who are selling their own activist view of how to twist the constitution to their own end.



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T

posted May 28, 2009 at 3:38 pm


I have to admit, the sentence causing the uproar is poorly worded. If Judge Sotamayer had said something like, “is capable of reaching a better conclusion” or “reach the same or better conclusion.”
But I get the point. We all bring a “richness of experience” to the table that cannot be denied. This quote from the passage balances, I think, the other:
“I think … we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group.”
Of course that cuts both ways. A white male can, if he makes the effort, at least understand the values and needs of people from a different group. I know it’s worked for me.



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Sam

posted May 28, 2009 at 4:37 pm


Clearly, we got upset because we’re all racists, right??? This is getting old. Calling conservatives racist (or imply it) is political bigotry, and it needs to stop.
Pretending it’s a meaningless phrase is a rather easy way out. I’m sure we conservatives don’t even really have a judicial philosophy – we just come up with labels and tag lines.
It’s real simple: The personal views of a (good) judge is irrelevant. That’s what the executive and legislature branches are for. They judge how laws should be applied in a way that is constitutional, because the Constitution is NOT “living.” It means what it meant (this is the only logical conclusion by the way). If you want to change it, you don’t pretend it says something it doesn’t (see Roe v. Wade) – you AMEND it. The reason why it’s so hard to amend (needing state approval) is because the framers were trying to avoid an oppressive federal government (see Obama) over state’s rights. This is Social Studies 101 people.



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James Gilmore

posted May 28, 2009 at 6:00 pm


Clearly, we got upset because we’re all racists, right??? This is getting old. Calling conservatives racist (or imply it) is political bigotry, and it needs to stop.
If the shoe fits, wear it. It’s no coincidence that the radical reactionaries’ demigod, Ronald Reagan, kicked off his presidential campaign talking about “states’ rights” (which is code for “legal racism” in the South) in Philadelphia, Mississippi, just miles away from where the Freedom Summer murders happened. Nixon’s Southern Strategy was entirely about racism, as were the standard right-wing talking points about “welfare queens” in the ’80s and ’90s, and the extreme xenophobia and hatred of the contemporary GOP against “illegal immigrants” and Muslims. I’m certainly not saying all conservatives are racists – there are many conservatives who have been quite progressive on matters of racial justice, like the late Nelson Rockefeller and Jack Kemp – but let’s be honest here, the strains of racism aren’t really too far below the surface of a great deal of the discourse of the radical reactionaries’ leaders and spokespeople.
By the way, “political bigotry”? Puh-leaze. I know you radical reactionaries like your persecution complexes, but when one of your own frat-boy flunkies just got out of an eight-year reign of incompetence in the Oval Office, and you still control one of the major parties in the U.S. as well as a sizable chunk of both houses of Congress, you can’t really claim that you’re a repressed minority. When there exist widespread reports of people getting pulled over and brutalized by police for Driving While Conservative, or being denied a job or housing because their name sounds conservative, or being denied the right to marry the person they love because they’re both registered Republicans, then and only then can you claim some kind of victimhood. Until then, it’s another pathetic attempt to confuse real inequalities in our society with fake ones in order to discredit even more the fact that the real ones still exist.
It’s real simple: The personal views of a (good) judge is irrelevant. That’s what the executive and legislature branches are for. They judge how laws should be applied in a way that is constitutional, because the Constitution is NOT “living.”
Sure it is… and so is society. When the Constitution was written, the largest form of “arms” anyone could bear was a cannon. Restricting the ownership of cannons made very little sense. Now, however, we have nuclear weapons; restricting their ownership, and the ownership of other extremely dangerous weapons (like tanks, howitzers, etc.) is perfectly logical. Even you’ll admit that. The right to bear arms – thought to be absolute by the founders of the country – is not absolute.
Changes in society necessitate changes in the way we understand and adapt the Constitution.
It means what it meant (this is the only logical conclusion by the way).
The only logical conclusion? Please lay out the irrefutable logic of this statement, being sure to address and refute every possible counterargument. Failure to refute even one counterargument disproves your premise that a radical originalist reading is the only logical conclusion. Let’s see it.
If you want to change it, you don’t pretend it says something it doesn’t (see Roe v. Wade) – you AMEND it.
I love when radical reactionaries say that the judges “invented” a right that didn’t exist (which is your basic radical reactionary argument against Roe v Wade), when the Ninth Amendment very specifically states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The argument that rights don’t exist unless they’re in the Constitution runs directly counter even to the radical reactionaries’ own originalist reading of the document.
The reason why it’s so hard to amend (needing state approval) is because the framers were trying to avoid an oppressive federal government (see Obama) over state’s rights.
Please tell me how exactly the federal government under President Obama (show the office some respect, please) is any more “oppressive” than other administrations since LBJ. Show your work; provide specific examples of documented oppression from reputable sources. No free passes here; if you have no specific examples, intellectual honesty demands that you retract your claim.



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freelunch

posted May 28, 2009 at 7:12 pm


Thank you James Gilmore for trying to explain this to Sam. Only a couple more comments about his presentation.
This is Social Studies 101 people.
Yet all you offered us was talking points from Remedial Political Posturing. Your comments implied that you haven’t mastered high school civics, Sam. All you’ve done is given us the talking points that you could have gotten from any middle-aged white guy who makes a lot of money by acting as if he is outraged on his radio show. The guy on the radio makes a lot of money with his act. Do you? Really, not one of those shows will teach you anything about civics, our government, or our constitution. If you want to learn about them, get a real education, not the nonsense that comes from fake outrage on the radio.



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Sam

posted May 28, 2009 at 7:19 pm


James -
First, It IS political bigotry to (explicitly or implicitly) call conservatives racist. Nor does it help your side, because we all start believing you’re far too irrational to converse with (which is why I almost didn’t even bother responding to your post). And “states’ rights” is not code for racism – it’s a core aspect of federalist ideology/conservatism. Furthermore, if you want to play this game, how about we start consistently implying liberalism to mean “haters of the unwanted unborn” or perhaps “destroyers of the black family” or maybe “the party that lacks a moral code.” Would you not like that? Hmm…
Second, you said, “Changes in society necessitate changes in the way we understand and adapt the Constitution.” You’re right, if only we had some sort of AMENDMENT process. Someone should look into that.
Ascribing meaning to original intent IS the only logical explanation. (By the way, when making a “logical” claim, it is not necessary to refute every possible counterargument – that’s not how logic works.) You can ascribe meaning to the words I’m typing now, but unless you were reflecting my intent as the author and creator of said words, you would (in fact) be mistaken. Once again, if we don’t like what the founders came up with in the Constitution – Amend it (and don’t pretend it says something it doesn’t).
Next, the ninth amendment applies to personal rights; however, once this effects the rights of another person (say, the right to live), your argument gets aborted (pardon the pun).
Finally, on your last comment, spare me the faux indignation on me calling the president simply “Obama” (how many times have you referred to our last president as simply “Bush”?). I thought so. I think generational theft, appointing federal justices for life that espouse liberal ideology above the law,
and excessive taxation all qualify as “oppression.” So NO, I will not retract my statement.



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Sam

posted May 28, 2009 at 7:22 pm


freelunch -
Once again, pretending we don’t have REAL arguments might be delusional fun, but it will do nothing to intellectually advance your argument.



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freelunch

posted May 28, 2009 at 7:51 pm


Sam, when the Democrats were finally getting rid of their racist heritage in the ’60s, the Republicans, rather than let the racists realize that they were unwelcome in polite company, decided to pursue the Southern Strategy to help the Wallace voters move to the Republican Party. There was little objection to this from the conservatives in the party. As was mentioned, even Ronald Reagan engaged in race baiting politics with his critical stop in Philadelphia, Mississippi, which has gotten over its past by electing a Black mayor.
Conservatives are responsible for their actions. As long as conservatives either are racist or make common cause with racists, there is no honest way for conservatives to object when we point to the company you keep. Feel free to engage in your self-righteous hypocrisy about liberals whenever you like. Remember, you lost and your party is shrinking. Make sure to offend as many wavering folks as you can.
There is an amendment process, but the Supreme Court does not amend the constitution in an extraconstitutional way. What it does is decide how the balance of rights and laws has to be made in light of the Constitution. There are times that the Supreme Court has made a decision that has been overturned by the amendment process. That is always an option, but by tradition, precedent, one of those things that conservatives claim to support until they don’t like the results, we go to the Supreme Court as the final arbiter of what the Constitution means now.
I don’t see any evidence in your post that you understand logic or how to make a logical argument. You make assertions that you cannot back up. An argument starts from a basic assumption that you have justified and then goes from there. You have not done this. It is also unfortunate that you have never read any court cases, particularly those that deal with the post-Civil War amendments and their history. Your assertion about the Ninth Amendment means is not supported by decisions.
I find it interesting that you are now upset about these things when it was Bush who ran up the huge deficits and began the generational theft thing while destroying the underpinnings of the economy and appointing reactionary judges who have no use for our constitution. I guess ‘better late than never’ right? No doubt you now realize how much damage Bush did and how costly it would be for anyone to undo the damage that was done.



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Sam

posted May 28, 2009 at 8:27 pm


“Better late than never”? Conservatives are not just now getting upset about generational theft. What do you think the ’06 and ’08 elections were about?



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James Gilmore

posted May 28, 2009 at 10:00 pm


What do you think the ’06 and ’08 elections were about?
Looks pretty clear to me they were about the American people telling the radical reactionaries that they weren’t wanted anywhere near the halls of power, given how gloriously they broke everything they could get their hands on from 2001-2006.



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frank goddard

posted May 30, 2009 at 7:57 pm


Your post ignores what the lady said and is really a comment on what you wished she said.
She said the cultural background of a latina woman means she makes a better decison than a white male. Whatever the context that is racist. If I was to say that as a white male with all my richness of experience that I would hope to make a better decision than a latina woman who has not lived my life – thats ok then?
Certainly not! its racist. Racism is asserting that one race is superior to another. whatever why you spin it, the truth is plain. This is pure simple racism. Why do you not have the guts to just come out and say it?
The problem is you cant reason with liberal left wing Christian zealots
Trying to reason with hardcore left-wing Evangelicals is like talking to a brick wall.
The Internet isn’t a good medium to engage these zealots or left wing fundamentalist.
You can’t reason with folks that refuse to employ reason. thats the problem with you guys – you don’t see reason – only your point of view. You are bigots of the worst kind



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Sam

posted May 31, 2009 at 11:00 pm


No doubt, Frank. How more people don’t see this is beyond me.



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William Ess

posted June 9, 2009 at 4:56 pm


I say, let the confirmation process-as flaw as it is going to be-proceed, because with the majority in the Senate, the democrats will confirm her regardless of her racial bias.



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companionship

posted June 16, 2010 at 6:34 pm


Rather interesting blog to spend some time on reading it at least for me. BTW, why haven’t you you place it to social media? That might bring big traffic here.



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brunette escort

posted June 23, 2010 at 12:19 pm


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Kate Swenson

posted September 26, 2010 at 10:21 pm


Pretty interesting blog you’ve got here. Thanks the author for it. I like such topics and everything connected to them. I definitely want to read a bit more soon.
Kate Swenson
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