The Right is Seizing Over Sotomayor

Here’s what I don’t understand. Where was all of this energy when George H. W. Bush appointed her in the first place?

From AL:

… I have to say that I’m somewhat shocked by the sheer brazenness of the Republican attacks on Sonia Sotomayor. I expected the standard “I oppose her because she’s liberal, not because she’s Hispanic” line, but instead nearly all the criticism seems to explicitly revolve around her ethnicity. She’s a racist, Newt Gingrich and Rush Limbaugh are telling us. She’s an affirmative action mediocrity, says the Weekly Standard.

Putting aside for a moment the deeply offensive and counterfactual nature of these attacks, I’m led to wonder whether the GOP has completely lost its collective mind. If you want to have any hope of ever getting another Hispanic vote, here’s a tip: at least pretend that your opposition to Sotomayor has nothing to do with her race.

More importantly, though, take a step back and look at how insane this “identity politics” criticism is. As far as credentials go, Sotomayor is virtually identical to the last Supreme Court nominee, Samuel Alito. They went to the same undergraduate school, Princeton (where Sotomayor graduated summa cum laude). They both went to the nation’s top law school. And they’ve had successful law careers that led to successful tenures as federal Appeals Court judges. But somehow because Sotomayor is of Puerto Rican descent as opposed to Italian descent, she is somehow less qualified. That’s nonsensical and insulting on several levels. Moreover, these same conservatives bristle as the suggestion that Clarence Thomas was less qualified than others for the job of Supreme Court Justice. He went to Yale, after all.

From TP:

Since President Obama announced Sonia Sotomayor’s nomination to the Supreme Court this morning, conservatives — such as Karl Rove — have publicly questioned whether she has the qualifications and “intellect” for the job. Today on CNN, however, former Attorney General Alberto Gonzales said there is “no question” that Sotomayor is qualified:

GONZALES: I have no questions in my mind about her qualifications in terms of education, experience. A president is not required to nominate the most qualified person to the court. I think he’s obliged to nominate someone who is well-qualified, and I think by any measures, she is well-qualified. I think there are legitimate questions about her judicial philosophy.

I’m not sure that I would want to take an endorsement from Alberto but I think that is shows who crazy the Right has become.  Someone that President Bush (the greater) nominated has now become so totally unacceptable to the Right.  In a way I think that all of their froathing at the mouth is good.  When Obama has the opportunity to choose someone else for the court sometime in the future he can choose a true liberal.  He can choose someone that will act as a counterweight to Scalia, Roberts and Thomas.

0 Responses

  1. Erri, the statements of your friends at AL and TP are completely false and disingenuous. None of the people you are talking about has said ONE SINGLE THING about her race in the sense of it making her less qualified. NO ONE. They have repeatedly stated time and again that the issue is with her “making policy” at the appeals court level and the “richness” of her background making her a better justice than a white man. And her soon-to-be-overturned stance on the New Haven firefighters. And that 60% of her rulings that have made it to the Supreme Court have been overturned.

    I have heard and read dozens of opinions on this issue, and I can look you straight in the face and say that no one is giving her any discredit for being Hispanic. That is patently false.

    Yes, she has been to the same schools and the same courts, and so on, and since those are so similar, the ONLY thing that can be the distinguisher is the fact is that she has proven herself to be an activist judge, making policy from the bench, and touting her own ethnicity as being so (more) important.

    Rove’s comment on her “intellect” is directly regarding her “judicial philosophy” which is what Gonzalez is pointing out. NONE of that is about her race; it’s about her judicial philosophy.

  2. I’m glad you pointed out that 60% of her opinions of been overturned. Without context that sounds amazing. Unfortunately, when you put in the context then that figure does not sound amazing whatsoever.

    This is from the hated (by the Right) Media Matters:

    But according to data compiled by SCOTUSblog, Sotomayor’s reported 60 percent reversal rate is lower than the overall Supreme Court reversal rate for all lower court decisions from the 2004 term through the present — both overall and for each individual Supreme Court term. Using SCOTUSblog’s data, Media Matters for America has also calculated the reversal rate for only federal appeals court decisions:

    Term Overall Lower Court Reversal Rate Circuit Court Reversal Rate
    2008 (preliminary through April 2009) 78% 85%
    2007 66% 61%
    2006 72% 72%
    2005 72% 77%
    2004 68% 73%
    2004-April 2009 71% 73%

    there are two good things about the data from Media Matters — first, they give you links so that you can actually look up the primary site of where the data comes from. Secondly, the 60% number actually looks exemplary, doesn’t it?

  3. Of course Democrats want to characterize any objection to Sotomayor as mere racism; but I believe that this is a disservice to anyone nominated to the Supreme Court.

    The qualifications argument is a none starter for me. During my life time, I think everyone nominated to the Supreme Court has met the minimal standards of qualifications.

    Anyone, the writers you quote from seem to have missed the substantial arguments made against Sotomayor. Here’s the question? Will Sotmayor rule by law or the empathies of the moment. Stuart Taylor has opened the question in the National Journal. Taylor writes:

    Quoting Sotomayor :
    “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” — Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001

    Taylor again quotes Sotomayor:
    Sotomayor also referred to the cardinal duty of judges to be impartial as a mere “aspiration because it denies the fact that we are by our experiences making different choices than others.” And she suggested that “inherent physiological or cultural differences” may help explain why “our gender and national origins may and will make a difference in our judging.”

    (Me: This is why she has been called racist)

    Taylor concludes:
    Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

    Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: “I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn’t lived that life” — and had proceeded to speak of “inherent physiological or cultural differences.”

    ME: So I hope that Sotomayor, President Obama and the Democrats make the case for their new standard of law: empathy and ethnic identity versus the old goal of an impartial rule of law.

    Identity Politics And Sotomayor

    http://www.nationaljournal.com/njmagazine/openingargument.php

  4. If she had just said female and male and left out “Latina” and “White” would there still be the fuss. She is correct in her statement.

  5. It wasn’t me or the Dems making the racial argument. That came from Karl Rove and Tom Tancredo and others on Fox like this one.

    Now, let’s look at the context of that quote that you questioning her ability to make a decision (I might add that no one has pointed to decision that she has made that was based on her sex or her race).

    From Media Matters:

    In fact, contrary to the suggestion that Sotomayor was commenting on the general judicial ability of Latinas and white men, Sotomayor was talking specifically about “race and sex discrimination cases.” From Sotomayor’s speech, delivered at the University of California-Berkeley School of Law and published in 2002 in the Berkeley La Raza Law Journal:

    In our private conversations, Judge [Miriam] Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice [Ruth Bader] Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

    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 [Sandra Day] 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 [Benjamin] 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.

  6. I encourage you to read the entire transcript from her speech. To me, she states her life experience is an asset that can lead to better decisions than white men lacking that decision. I believe she chose white men since this white men have dominated the supreme court. She gives as an example that until 1972 no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. Do you really think there was not one valid case of gender discrimination until 1972? I think decisions would have been “better” if rather than nine men on the bench, there was a 5-4 split of men an women.
    She continues by stating that while her life experiences as a latina woman can be an asset, they can also be a liability – much awareness and effort is needed to remain fair. Judge Sotomayo’s words are much more eloquent than mine. I encourage you to read the whole transcript.
    As a modern day example, the Supreme Court is currently examining a case where a 13 year old girl was strip searched at school (under suspicion that she was carrying ibuprofen). The girl did not have any ibuprofen, immediately transfered to another school, and developed ulcers after the experience. What concerns me is that several of the men on the bench have trivialized the incident and have made comments such as “its just like changing for gym class”. I would not imagine getting strip searched down to my genitals by three individuals is similar to changing for gym class. Ruth Bader Ginsberg has taken this case seriously and is exasperated with her male collegues and stated it would be helpful to have more women on the bench. I agree.

  7. Bud Brooks said; “None of the people you are talking about has said ONE SINGLE THING about her race in the sense of it making her less qualified. NO ONE.”

    Bud, what concerns me is that several leaders of the far right have called her nomination “affirmative action”. This suggests that she is underqualified and chosen based on her race. This is unfair and untrue. She is supremely qualified and is on par with Justice Alito – who was praised for his qualifications. Personally, I am fine if race was a factor in her hiring since she is highly highly qualified. None of the individuals who claim “affirmative action” have stated one person who is more qualified than Sotomayor.

  8. I encourage you to read the entire transcript from her speech. To me, she states her life experience is an asset that can lead to better decisions than white men lacking that experience. I believe she chose white men since this white men have dominated the supreme court. She gives as an example that until 1972 no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. Do you really think there was not one valid case of gender discrimination until 1972? I think decisions would have been “better” if rather than nine men on the bench, there was a 5-4 split of men an women.
    She continues by stating that while her life experiences as a latina woman can be an asset, they can also be a liability – much awareness and effort is needed to remain fair. Judge Sotomayo’s words are much more eloquent than mine. I encourage you to read the whole transcript.
    As a modern day example, the Supreme Court is currently examining a case where a 13 year old girl was strip searched at school (under suspicion that she was carrying ibuprofen). The girl did not have any ibuprofen, immediately transfered to another school, and developed ulcers after the experience. What concerns me is that several of the men on the bench have trivialized the incident and have made comments such as “its just like changing for gym class”. I would not imagine getting strip searched down to my genitals by three individuals is similar to changing for gym class. Ruth Bader Ginsberg has taken this case seriously and is exasperated with her male collegues and stated it would be helpful to have more women on the bench. I agree.

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Errington C. Thompson, MD

Dr. Thompson is a surgeon, scholar, full-time sports fan and part-time political activist. He is active in a number of community projects and initiatives. Through medicine, he strives to improve the physical health of all he treats.

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