Last week, President Obama announced Judge Sonia Sotomayor as his pick to replace Justice David Souter on the United States Supreme Court. As anyone could have guessed, the Republican smear machine immediately went to work drudging up whatever they could to label Judge Sotomayor as lunatic fringe Latin supremacist seeking to rewrite our Constitution from a Brown Power perspective, probably in Spanish.
Here's what they've come up with so far followed by commentary.
1) Quote #1: "All of the legal defense funds out there, they're looking for people out there with court of appeals experience, because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don't make law, I know. I know."
Judge Sotomayor made this statement during an unscripted panel discussion. Many people out there will likely feel that this makes the comment all the more candid, but I think anyone who has experience speaking before the public should have no trouble understanding that we don't always make the best choice of words under those circumstances.
More importantly, however, courts of appeal do make policy choices. News flash, folks: most important cases go up on appeal because they present a set of facts that have not yet been clearly addressed by a particular statute or subsequent case law. Appellate judges have to decide how to apply the law to a given set of facts, and they do this based upon the language of the statute, case law, and policy as it is expressed in legislative history, trends in the law in other jurisdictions, and whether the consequences of their decision one way or the other furthers or frustrates those policies. Whether it's torts, contracts, real property, criminal procedure, or the Constitution, all judges-- conservative or liberal-- do this. As a matter of fact, lawyers commonly refer to it as judges "making law."
Given the context in which the statement was made and the reality of an appellate court's job, I think we can safely say Judge Sotomayor doesn't need to be raked over the coals for this comment.
2) Quote #2: "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'm not sure that Judge Sotomayor's "hope" that a Latina woman would make a better decision than a white male warrants getting too worked up over. After all, don't we all hope that more often than not we make better decisions than others? She does not say that Latina women do make better decisions or any any wiser than white males, so why the fuss? If you don't start from the assumption that Judge Sotomayor is a rogue jurist hell bent on sticking it to the white man, then you can take this statement for what it is. Namely, the aspiration of a minority woman who struggled to reach the heights of her profession perhaps trying to give others with a similar background the encouragement to know that there is nothing about them or their heritage to suggest that they can't do their job as well as or even better than white people.
3) Quote #3: "Whether born from experience or inherent physiological or cultural differences our gender and national origins may and will make a difference in our judging."
I look at a staircase, and it's no big deal. Someone in a wheelchair may well see it as an insurmountable barrier to access. Do you think a lawyer in a wheelchair reads the Americans with Disabilities Act with the same pair of eyes that I do? Do you think the act reads the same to someone who reads it in braille? No, and you had better believe that makes a big difference in how each of us would perceive a reasonable accomodations case.
I deliberately avoided using race and ethnicity in this example, because I think race and ethnicity, not the substantive content of what Judge Sotomayor said, are precisely what make people uncomfortable with this quote. If Judge Sotomayor were a disabled white male making this comment about the rights of the disabled, then I don't believe people would find it so controversial. Would it disturb people if Justices Breyer or Scalia made such a comment? I honestly don't think so. Coming from a white male, such a statement would likely be taken as the sign of a humble and profoundly introspective soul who is nothing short of a credit to the bench and a shining example of our society's aspriation for an impartial judiciary. Coming from a minority, however, it strikes people as "reverse racism" or a veiled threat of racial payback.
The irony is that we should all breathe a tremendous sigh of relief and feel encouraged by the fact that Judge Sotomayor is honest and self aware enough to acknowledge that, as a human being, she is not immune from the influence of her upbringing and ethnicity.
3) She does not have the respect of her peers.
Hogwash.
Follow this link to find praise for Judge Sotomayor coming from Judge Guido Calabresi, a colleague of Judge Sotomayor's on the Second Circuit Court of Appeals; as well as praise from the former Chief Judge of the Second Circuit Court of Appeals and a former Reagan appointee to the federal bench.
Does she have detractors? Undoubtedly. So do Justices Scalia, Thomas, and others. Not a disqualifier.
4) She has been overturned by the U.S. Supreme Court too many times.
This may well be my favorite. If you follow the logic that someone who has been overturned by the Supreme Court doesn't belong on the Supreme Court, then we should also bounce Supreme Court Justices who end up writing too many dissenting opinions. After all, they're on the losing side, right? They keep getting it wrong, so Congress should fire them.
No?
Of course not! Law students often end up studying the progression of case law in a variety of areas, and more often than not, as many law professors themselves will put it, "Yesterday's dissenting opinions are today's majority opinions." Disagreeing with Supreme Court opinions does not a bad judge make. Actually, Oliver Wendell Holmes, Jr., widely touted as perhaps our nation's greatest jurist, took on the moniker "The Great Dissenter" based on the number of times he dissented with the majority of his peers on the U.S. Supreme Court. And it doesn't stop there. Early in their careers, Justice William Rehnquist and even the conservative darling Justice Antonin Scalia developed reputations as "Great Dissenters."
Obviously, I'm talking about sitting justices here, and I'm not saying that Judge Sotomayor is somehow qualified simply by virtue of the fact that she disagrees. The logic, however, still applies. The fact that she has been overturned by the highest court in the land does not disqualify her anymore than being a Great Dissenter should be grounds for removal. Remember, Justice Marhsall Harlan wrote the sole dissent in Plessy v. Ferguson, the case that legitimized racial segregation in this country until Brown v. Board of Education.
5) She is a judicial activist.
This is not about judicial activism. It's about abortion. "Judicial activism" is a phrase conservatives use along with "legislating from the bench" for judges who support abortion rights. The scope of this debate goes way beyond anything I could fairly address in this post, but suffice it to say that there are very legitimate philosophical differences regarding how we should interpret our Constitution. It's a debate between the conservative school of Constitutional theory known as originalism and the liberal school that is usually described as the living Constitution theory. Bottom line? There's a legitimate disagreement here, folks, and if you think President Obama is going to nominate an originalist, then I wouldn't hold your breath.
(Note: Anyone who wants to know more about this very interesting debate should follow the links provided, or you can check out two short books on the subject. Justice Scalia explains originalism in his book A Matter of Interpretation while Justice Stephen Breyer presents his vision of the alternative in Active Liberty)
So let's face it, folks, Sonia Sotomayor is a qualified candidate to sit on the U.S. Supreme Court. I predict that Republican Senators will huff and puff but ultimately put up little more than nominal resistance to placate their constituents as well as the conservative pundits, while the pundits and presidential hopefuls will puff out their chests and rattle their swords since they have nothing to lose but listeners or the 2012 nomination.
And in the end? Judge Sotomayor will be confirmed to the surprise of no one and the genuine chagrin of few.
Kabuki, anyone?
Swim safely,
The Lifeguard
Here's what they've come up with so far followed by commentary.
1) Quote #1: "All of the legal defense funds out there, they're looking for people out there with court of appeals experience, because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don't make law, I know. I know."
Judge Sotomayor made this statement during an unscripted panel discussion. Many people out there will likely feel that this makes the comment all the more candid, but I think anyone who has experience speaking before the public should have no trouble understanding that we don't always make the best choice of words under those circumstances.
More importantly, however, courts of appeal do make policy choices. News flash, folks: most important cases go up on appeal because they present a set of facts that have not yet been clearly addressed by a particular statute or subsequent case law. Appellate judges have to decide how to apply the law to a given set of facts, and they do this based upon the language of the statute, case law, and policy as it is expressed in legislative history, trends in the law in other jurisdictions, and whether the consequences of their decision one way or the other furthers or frustrates those policies. Whether it's torts, contracts, real property, criminal procedure, or the Constitution, all judges-- conservative or liberal-- do this. As a matter of fact, lawyers commonly refer to it as judges "making law."
Given the context in which the statement was made and the reality of an appellate court's job, I think we can safely say Judge Sotomayor doesn't need to be raked over the coals for this comment.
2) Quote #2: "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'm not sure that Judge Sotomayor's "hope" that a Latina woman would make a better decision than a white male warrants getting too worked up over. After all, don't we all hope that more often than not we make better decisions than others? She does not say that Latina women do make better decisions or any any wiser than white males, so why the fuss? If you don't start from the assumption that Judge Sotomayor is a rogue jurist hell bent on sticking it to the white man, then you can take this statement for what it is. Namely, the aspiration of a minority woman who struggled to reach the heights of her profession perhaps trying to give others with a similar background the encouragement to know that there is nothing about them or their heritage to suggest that they can't do their job as well as or even better than white people.
3) Quote #3: "Whether born from experience or inherent physiological or cultural differences our gender and national origins may and will make a difference in our judging."
I look at a staircase, and it's no big deal. Someone in a wheelchair may well see it as an insurmountable barrier to access. Do you think a lawyer in a wheelchair reads the Americans with Disabilities Act with the same pair of eyes that I do? Do you think the act reads the same to someone who reads it in braille? No, and you had better believe that makes a big difference in how each of us would perceive a reasonable accomodations case.
I deliberately avoided using race and ethnicity in this example, because I think race and ethnicity, not the substantive content of what Judge Sotomayor said, are precisely what make people uncomfortable with this quote. If Judge Sotomayor were a disabled white male making this comment about the rights of the disabled, then I don't believe people would find it so controversial. Would it disturb people if Justices Breyer or Scalia made such a comment? I honestly don't think so. Coming from a white male, such a statement would likely be taken as the sign of a humble and profoundly introspective soul who is nothing short of a credit to the bench and a shining example of our society's aspriation for an impartial judiciary. Coming from a minority, however, it strikes people as "reverse racism" or a veiled threat of racial payback.
The irony is that we should all breathe a tremendous sigh of relief and feel encouraged by the fact that Judge Sotomayor is honest and self aware enough to acknowledge that, as a human being, she is not immune from the influence of her upbringing and ethnicity.
3) She does not have the respect of her peers.
Hogwash.
Follow this link to find praise for Judge Sotomayor coming from Judge Guido Calabresi, a colleague of Judge Sotomayor's on the Second Circuit Court of Appeals; as well as praise from the former Chief Judge of the Second Circuit Court of Appeals and a former Reagan appointee to the federal bench.
Does she have detractors? Undoubtedly. So do Justices Scalia, Thomas, and others. Not a disqualifier.
4) She has been overturned by the U.S. Supreme Court too many times.
This may well be my favorite. If you follow the logic that someone who has been overturned by the Supreme Court doesn't belong on the Supreme Court, then we should also bounce Supreme Court Justices who end up writing too many dissenting opinions. After all, they're on the losing side, right? They keep getting it wrong, so Congress should fire them.
No?
Of course not! Law students often end up studying the progression of case law in a variety of areas, and more often than not, as many law professors themselves will put it, "Yesterday's dissenting opinions are today's majority opinions." Disagreeing with Supreme Court opinions does not a bad judge make. Actually, Oliver Wendell Holmes, Jr., widely touted as perhaps our nation's greatest jurist, took on the moniker "The Great Dissenter" based on the number of times he dissented with the majority of his peers on the U.S. Supreme Court. And it doesn't stop there. Early in their careers, Justice William Rehnquist and even the conservative darling Justice Antonin Scalia developed reputations as "Great Dissenters."
Obviously, I'm talking about sitting justices here, and I'm not saying that Judge Sotomayor is somehow qualified simply by virtue of the fact that she disagrees. The logic, however, still applies. The fact that she has been overturned by the highest court in the land does not disqualify her anymore than being a Great Dissenter should be grounds for removal. Remember, Justice Marhsall Harlan wrote the sole dissent in Plessy v. Ferguson, the case that legitimized racial segregation in this country until Brown v. Board of Education.
5) She is a judicial activist.
This is not about judicial activism. It's about abortion. "Judicial activism" is a phrase conservatives use along with "legislating from the bench" for judges who support abortion rights. The scope of this debate goes way beyond anything I could fairly address in this post, but suffice it to say that there are very legitimate philosophical differences regarding how we should interpret our Constitution. It's a debate between the conservative school of Constitutional theory known as originalism and the liberal school that is usually described as the living Constitution theory. Bottom line? There's a legitimate disagreement here, folks, and if you think President Obama is going to nominate an originalist, then I wouldn't hold your breath.
(Note: Anyone who wants to know more about this very interesting debate should follow the links provided, or you can check out two short books on the subject. Justice Scalia explains originalism in his book A Matter of Interpretation while Justice Stephen Breyer presents his vision of the alternative in Active Liberty)
So let's face it, folks, Sonia Sotomayor is a qualified candidate to sit on the U.S. Supreme Court. I predict that Republican Senators will huff and puff but ultimately put up little more than nominal resistance to placate their constituents as well as the conservative pundits, while the pundits and presidential hopefuls will puff out their chests and rattle their swords since they have nothing to lose but listeners or the 2012 nomination.
And in the end? Judge Sotomayor will be confirmed to the surprise of no one and the genuine chagrin of few.
Kabuki, anyone?
Swim safely,
The Lifeguard
