Posted by Brad @ 1:07 pm on May 26th 2009

Sonia Sotomayor is Obama’s Supreme Court Pick

The obvious choice, I guess, given it pretty much had to be a woman. Ideologically, she’s down-the-line liberal but not known for radicalism or grand vision. Demographically, she’s a female Hispanic, of course, and good luck to the Republicans if they wish to even brush against any of those lines. As to how the confirmation plays out, my guess is Alex Massie has it right.

Identity politics and treating entire swathes of the population as client groups is not an especially bonny aspect of American politics. But it is what it is. While it’s not obviously the case that just putting the first hspanic justice on the bench necessarily advances or even much solidifies Democratic support amongst latino voters, one can easily imagine a situation in which a raucous, energetic, strident Republican attempt to derail the nomination could further alienate hispanic voters from the GOP. That might be unfair, but I wager it’s how it would be perceived by latino voters. So this would seem, at first blush, to be the trap Obama has set for the Republicans: accept the nomination (assuming there’s no scandal) and like it or fight it and lose and do more damage to your own interests than you would if you’d simply seethed in silence and accepted your inevitable defeat. It’s one they do not need to fall into…

Or, demographics aside, as Ben Smith puts it:

Obama has signaled that he plans a much more populist appeal, stressing the common touch, than the usual intellectual, legal and Beltway-centric defenses of Supreme Court nominees. And my view is that this nomination, barring surprises, carries far more risk for the Republican Party than for the White House.

With Specter already in favor of her nomination, as well as the two Maine ladies, the possibility of a filibuster is DOA. My expectation is right-wing talk radio ala Glenn Beck make a lot of noise, and we hear a lot about her statements that appellate judges “make policy”, but otherwise, Republicans just eat this one. They’re in no position to pick this fight (or to fight this pick, as it were), and my guess is they know it. The only way she can really be considered objectionable is if one considers any liberal justice unacceptable (and many do). My guess is it’ll be an obligatory kind of opposition, but without much fire in the belly, and all told a pretty easy confirmation.

One final point: Glenn Greenwald gives Obama more credit than I do for his political courage here, given that there has been a concerted whisper campaign in the beltway media to try to define Sotomayor early. That might have led some Presidents seeking to entirely avoid controversy to pass her over for an even more milquetoast liberal. My impression of the campaign against her was that it was more a probing endeavor, to see how much leverage they might be able to gain. Answer: not much.

In the coming week, I hope to learn more about Sotomayer’s philosophy, particularly on executive authority and privacy issues, and post them here. But first blush is she’ll vote pretty close to Souter, so the net lean of the court won’t change much. On the whole, from what I know about her, it’s a fairly uninspired choice. That’s not necessarily a bad thing, but given that Obama is as knowledgeable on constitutional law as any President in the last hundred years, there was both the hope and the fear that he would bypass easy politics and pick someone who might add a new ideological thrust to the court, someone who intellectually really excited him, say a lesser known and more, forgive me, maverick-y figure that would have added an interesting wrinkle to the bench or a particular expertise/passion. Like I said, that could have been bad or good depending, but it would have been interesting. Instead, he went with a pretty mainstream liberal that, like I said, probably won’t change the fundamentals of the court at all. And, I guess, there’s something to be said for that. Obama is anything but a radical, I’ll give him that.

39 Comments »

  1. I am not very thrilled with this little Freudian slip on her part. Of course what she said isn’t very radical–if you’re a radical that is.

    Comment by James — 5/26/2009 @ 1:47 pm

  2. Dammit! Try this: http://www.youtube.com/watch?v=OfC99LrrM2Q

    Comment by James — 5/26/2009 @ 1:49 pm

  3. See, James, here’s another case of you picking up the talking point without the context, or for leaving the whole “is what she says true?” aspect out of it entirely.

    That whole “controversy” reminds me a lot of Obama’s “redistributionist” comment, where he was making a plain, uncontroversial, and on-the-face-of-it true comment (in that case, saying “the court at that time historically interpreted such and such this way”) and critics tried to take a single chunk of it wildly out of context and try to mash it into a pre-scripted attack, and the only people that worked with were those who either didn’t understand a lick of what he was saying, or who didn’t care.

    In this case, what Sotomayor is describing are the different roles of district courts and appellate courts. District courts decide individual cases and usually aren’t applicable beyond the fates of the plaintiffs and defendants. Appellate courts, by contrast, are more about clarifying existing laws where said laws are unclear and need to be interpreted, and their decisions in that respect are looked to to provide a precedent for future interpretations of the law. The point she is making may be made inelegantly, but it’s not at all unclear what distinction she is making, and it is patently, on-the-face-of-it, 100% true.

    What she is NOT saying is that courts make law, but that they do have a function, appellate courts especially, in setting policy. Indeed, that is their function. This is the whole idiotic debate about “activist” judges dumbed way way down. There are a lot of shades of judicial activism, and Sotomayor is speaking to none of them. She is stating a plain fact of a fundamental function of the judicial system of the United States of America as outlined by the constitution, where the legislature creates policy (“legislates”), the judicial branch interprets policy (“judges”), and the executive branch enforces and enacts policy (“executes”). It just boils down to whether you could consider “interpreting” policy in a way that future courts and executors will follow as controlling precedent to be “setting” policy, and I don’t see how you couldn’t, even if, as she laughs about there, you have to be careful how you say that lest conservative idiots try to make a hollow talking point out of it.

    I’ll give AL the final word:

    There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear. When the law is clear, no one bothers to appeal (because it’s really expensive). A Court of Appeals grapples with the difficult questions, the gray areas in the law, and ultimately issues rulings one way or the other. These rulings then become the policy of that particular circuit, serving as controlling precedent in future cases. This is just as true in the ultra-conservative Fourth Circuit as it is the more liberal Ninth Circuit.

    But in Simplistic Republican World, none of this actually happens. Good conservative judges don’t “make policy,” they simply enforce the law. The law is apparently always clear. Indeed it’s a wonder that lawyers even bother to appeal cases in the Fourth Circuit. After all, they should know that the conservative jurists in that circuit will simply “enforce the law” (because they wouldn’t dream of “making policy”), so the outcome should be very predictable.

    Undoubtedly conservatives will point to Sotomayor’s reaction to her own words as evidence that she was letting slip some secret about how liberal judges actually operate [Brad note: heh]. But the obvious truth is that she was merely anticipating that some clown like Orrin Hatch might someday twist her worlds to mean something they don’t. She was talking about how all judges operate at the Court of Appeals level. If you’re not thinking about the policy implications (i.e., the precedential effect) of your rulings, you’re not doing your job.

    Cue opaque comment from James not speaking to any of these points and refusing to engage this discussion and instead making a vague snark that I, like Sotomayor, am clearly a radical liberal, and leaving it at that.

    Comment by Brad — 5/26/2009 @ 2:38 pm

  4. To put that more succinctly, in the context in which she’s clearly speaking “setting policy” is synonymous with “interpreting law”, and I don’t care how strict a constructionist you are, that is a self-evident, unobjectionable, and on-the-face-of-it true observation, unless you’re more interested in putting something into a pre-scripted talking point than, you know, plain meaning.

    Comment by Brad — 5/26/2009 @ 3:05 pm

  5. Well, she clearly knew that what she said was rather likely to be construed a certain way, Brad. Ergo her hurried attempt to clarify. Taken at face value I don’t like what she said one bit, but I am certainly not passing judgment on her for one comment any more than I pass judgment on you for your 80,000 comments. It would be refreshing if you chose to extend the same courtesy to me. Thanks.

    Comment by James — 5/26/2009 @ 3:15 pm

  6. Well, she clearly knew that what she said was rather likely to be construed a certain way, Brad. Ergo her hurried attempt to clarify.

    James, she knew that what she said would be construed in exactly the way you are currently construing it. Her guessing (quite correctly, ironically) that the comment would be construed a certain way by a certain class of political opportunists says more about the predictability of said opportunists and the rote distortion of the plain meaning of language than it does about her statement in particular. She is laughing at you, not with you. Her “attempt to clarify” is a joke, on you.

    Taken at face value I don’t like what she said one bit, but I am certainly not passing judgment on her

    1. But you are not taking it at face value. You are taking it as a Freudian slip indicating her promotion of or adherence to a radical leftist agenda rather than, oh, a plain description of how the judicial system operates that is patently and obviously true and objective. You did not bother to watch the whole video, nor do I gather you much care about the context (which is explaining the shades of difference between district courts and appellate courts, appellate courts being more precedent-setting, i.e. more policy-setting, and not, in fact, about how liberals can use the power of the courts to remake the country in their image), because the truth is you don’t care.

    You got the answer you were looking for, case closed, open and shut, and I knew at the outset that I could post the most reasonable explanation of the plain meaning of what she said and it wouldn’t make a lick of difference to you. You wouldn’t even consider it, and certainly not engage it. Because, when it comes to stuff like this, ideas don’t move you. You have your worldview, and all you seek is further affirmation. Hence my preemptive digs at you, which was just as much a dig at me for even bothering to type all that out when I knew I’d just be, in effect, talking to myself. In that sense, it doesn’t matter what Sotomayor says. So long as a buzzword is hit, the response it triggered and predicable. Which is the irony here, because that’s what Sotomayor and the audience are laughing about in the first place.

    2. And to that end, “I am not passing judgment”? How can you say that in the context of a sentence painting the above clip as a Freudian slip betraying a radical leftist agenda—which is nearly verbatim the face value of what you said? Who do you think you’re kidding?

    Comment by Brad — 5/26/2009 @ 3:54 pm

  7. Where did I use the word “leftist”, Brad? I said “radical”. And I think it is radical for US courts to be in the business of making policy, whether left or right. That is not supposed to be their constitutional role. If you want to skip down that road, then you go for it. You think I have some knee-jerk negative reaction to whatever Obama does and you are wrong. If what I say makes you think so, I’m sorry; but on the other hand what you say give one the impression that Obama eat a baby on live TV and you would find it praiseworthy, so I guess what’s fair is fair.

    Comment by James — 5/26/2009 @ 4:35 pm

  8. No, it gives you that impression James. Because that’s the only perspective you demand to see the world through.

    Again, it’s useless conversing with you on such things, and that’s not even a function of you being anti-Obama (which I think you are, but not virulently so) so much as your quickness to make snap judgments based on incomplete information and then slamming the door, at least rhetorically, on any further information or revisitation. Maybe it works different inside your head, but that’s certainly how you come off in these discussions.

    Case in point: I made a big post above explaining her remark, which itself was rather superfluous because her remark was rather clear if you know anything about what she’s talking about. And yet you blissfully just repeat the same thing (and by the way, if we’re being pedantic, she said “setting policy” not making it). And from our rather voluminous internet-arguing experience, I know there is literally nothing I could post that would disrupt that pattern even the slightest. Which is why I get frustrated, because the second you post something like the above I know I’ll be talking to a brick wall. But I’ll try, once more, for the cheap seats.

    And I think it is radical for US courts to be in the business of making policy, whether left or right. That is not supposed to be their constitutional role.

    No, they are in the business of setting policy. That is its undeniable effect and function. The whole purpose of having a judicial system at all is so, on points where the application or interpretation of law is unclear, to take that to a court and have them clarify that policy, thereby setting future policy which will now take into account that purpose.

    Think of the right to bear arms. Saying that that applies to all firearms and no restrictions on the use or bearance of those arms are valid is setting policy. So is saying that the second amendment only applies to “a well regulated militia”, thus only to trained services, and thus all privately held firearms ought to be outlawed. If you decide in a case that the fourth amendment protections against unreasonable search and seizure also apply to dogs sniffing out drugs in cars in this case, that is setting policy. If you decide in a case that the fourth amendment protections against unreasonable search and seizure DO NOT also apply to dogs sniffing out drugs in cars in this case, that is also setting policy. If you decide in a case that the fourth amendment protections against unreasonable search and seizures apply to dogs sniffing out drugs in cars in this case but do not in this other case, that is setting policy. All cases that come before an appeals court including the cases they refuse to hear “sets policy”. And that is exactly what Sotomayor is talking about, and it is self-evidently true and has no partisan or even particularly ideological implications to it. All cases where the law is interpreted by a court and thus a precedent is set is a matter of, in effect, setting policy, and it is either good or bad or warranted or unwarranted depending.

    You cannot name for me an instance of a high court ruling that does not set policy, because that is the entire and explicit function of the courts. If they just interpreted the law and we were free to ignore or adhere to their interpretation as we see fit, their wouldn’t be much of a friggin’ point to having a judicial system at all now would there? It is perhaps one of the least radical observations a person could make in explaining, at a fourth grade level, how our legal system works.

    This is not a minor point James.

    Comment by Brad — 5/26/2009 @ 5:22 pm

  9. But, as you know, the whole fallback to cries of “judicial activism” to mean essentially whatever the person wants it to mean drives me nuts, even above and beyond the whole trying to argue with you thing. It’s one of the most useless and meaningless political terms in current use. It needn’t be—there are certainly conversations to be had about the scope of judicial authority and the particulars of this or that case interpretation—but when it turns into this kind of vapid game-playing, it’s liquefied into nonsense.

    Comment by Brad — 5/26/2009 @ 5:27 pm

  10. No Brad, the courts should uphold policy when those who make policy stray from their own constructs or the constructs of those who preceded them all the way back to the framers of our constitution. There is a big difference between the two views our courts in my mind and I would add, in the minds of a lot of people that believe the courts have strayed from their intended role; albeit, the courts did have this situation foisted upon them by a Congress that has chosen to relegate its sworn duties for far too long.

    Comment by James — 5/26/2009 @ 7:35 pm

  11. No, James. Law enforcement should uphold and enforce policy (though the courts also have a significant role there too, in terms of sentencing and whatnot). Legislators should make policy. The executive should execute policy. The courts should interpret policy.

    Amen on the last part.

    But the courts should uphold policy? That’s what cops and Presidents are supposed to do. What courts do is figure out how the law is supposed to be upheld, to apply laws in the gray areas, to disambiguate, to clarify. This is what bothers me about the “activist judge” talking points you’ve completely absorbed. It implies that judges have no discretion. But the act of judging is the act of discretion. That’s why it’s called “judging”. It implied making a decision in ambiguous circumstances. If circumstances were never ambiguous, you’d never need a judge. Like I said, if there was no need to interpret policy, we’d get by just fine without a judicial system at all. They’d just post the laws like Luther on the church doors and we’d all go about our business.

    Now how you choose to interpret that is another question entirely. What you’re, presumably, talking about is that policy should be interpreted as close as possible to its original intent. But even that’s a bit of a misnomer, because it again implies that that’s easy enough, and that, as a practical matter, there ought not be any real ambiguity there. How do you divine intent? What about laws which were written unclearly? What about instances where the letter of the law is in clear conflict with the intents of its authors (i.e. they did not say what they meant, or mean what they said)? What about situations that arise that had not been considered when the original law was written? What about two courts, compromised of reasonable people and conducted in honorable manners, who have thought the intent of the same law to be different? And so on and so forth. You could spend a lifetime of taking law classes and not get good answers to any of these questions. And therein lies the judicial system.

    Sonia Sotomayor spoke to none of these things in the clip you posted, because the question wasn’t remotely related to any of those discussions. All she did was hit the buzzword “setting policy”, and even then only if one willfully and wildly misinterprets the plain meaning of what she’s saying. If only there were some way to have a reasonable and objective third party that we could take our various interpretations to…

    Ah but fuck it. Let’s just decree that people “uphold” it, or not uphold it, but not give them any basis of vehicle for determining what “it” is.

    Comment by Brad — 5/26/2009 @ 8:45 pm

  12. Ironically, I don’t think there IS a big difference between our two views of the courts. My guess is, in specific application, you and I would be more or less on the same side most times. You’re just not getting past the most shallow level of sound bytes and buzzwords and “gotchyas” or demonstrating any desire to think beyond any of things.

    Sorry, bitchy day.

    In any case, the plain meaning of what Sotomayor is saying is that appellate courts create precedents which in turn set policy (“set policy” not in the sense of “making up new laws” but in the sense of “interpreting laws”, interpretations that form the basis of present law enforcement and future judicial thinking). This is non-controversial, abjectly and idiotically true, and completely non-ideological. She is not engaged in advocacy here: she is making a plain description of the way the judicial system in America works (and yes, how it was designed to work).

    Hell, she could be a Marxist radical for all I know. But this is not evidence of it, or anything beyond the fact that she understands the difference in practical implications of district courts versus appellate courts, which is again first semester pre-law. You are barking up the wrong tree here, and I’m getting tired of people’s statements of plain fact being twisted into some kind of “code” for radical ulterior motives because they hit the wrong buzzword. For that matter, aren’t you supposed to be the anti-PC guy here?

    Comment by Brad — 5/26/2009 @ 8:57 pm

  13. While I agree that “judicial activism” is one of the most empty phrases in modern politics, essentially meaning “any decision I don’t like,” I have to say that this meme of seeing Sotomayor’s comments as entirely defensable on purely legal definition grounds is a real semantic stretch. I see her comment as inellegant bordering on inappropriate, and that Judge S recognized it.

    Taking the phrase in question: “policy is made” you guys offer two interpretations.
    Brad: “Policy is made” = “law is interpreted” or
    James: “Policy is made” almost = “law is made”.

    James assumption seems closer to me than yours, Brad.

    Now don’t get me wrong, it is one comment in a gazillion, and I tend to think that she was really just trying to sell the importance of the appeals courts. My interpretation:
    “Policy is made” = “This is where the real shit goes down, dog.”

    What do you dogs make of the “wise latina with the richness of her experience” reaches better decisions than a white male statement?

    Comment by Jack — 5/26/2009 @ 9:41 pm

  14. I think that she is saying that she and Obama are smarter than your average cracker.

    That was for Brad.

    What I really think is that she has a record that deserves examination beyond her anecdotal gaffs. I mean between Bush, Biden, and Barack Obama, we have quite a catalog of verbal variances. What I don’t think is that she should get a pass because she had her feet anointed. Let’s keep it real, if we can.

    Comment by James — 5/26/2009 @ 11:18 pm

  15. What do you dogs make of the “wise latina with the richness of her experience” reaches better decisions than a white male statement?

    On its face, I can’t see how it isn’t an instant disqualifier for the office. There must be some context I’m missing. I haven’t explored it all that fully, though, because frankly it seem like she could eat a baby at this point and still be confirmed.

    Comment by Rojas — 5/27/2009 @ 12:27 pm

  16. An instant disqualifier for the office? Are you joking?

    Sigh. Let’s look again at the full context. Read the whole thing, but what I’d consider the full context.

    Now Judge Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then “as not capable of reasoning or thinking logically” but instead of “acting intuitively.” I am quoting adjectives that were bandied around famously during the suffragettes’ movement.

    While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought. Thus, as noted by another Yale Law School Professor — I did graduate from there and I am not really biased except that they seem to be doing a lot of writing in that area — Professor Judith Resnik says that there is not a single voice of feminism, not a feminist approach but many who are exploring the possible ways of being that are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be.

    That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, “to judge is an exercise of power” and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states “there is no objective stance but only a series of perspectives — no neutrality, no escape from choice in judging,” I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father’s visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women’s claims in sex discrimination cases and criminal defendants’ claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.

    In our private conversations, Judge 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 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 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.

    That single sentence being bandied around is about the only klunky or in-itself risable one in the whole discussion, which is a pretty milquetoast rejection of the idea of a “color blind society” in the Stephen Colbert sense, and an affirmation of the Obama “empathy” standard in the sense that he means it. She’s speaking to an audience of Latinos and women saying “Of course being a Latina will influence your perspective. I would hope it would do so for the better,” speaking specifically of cases where consideration of race and sex are particularly germane.

    Right after that extended, she concludes with:

    Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

    Really, this is getting ridiculous if we consider that a disqualifier for high courts. We’re now demanding that judges categorically deny that race and gender influence their perspectives?

    Comment by Brad — 5/27/2009 @ 12:50 pm

  17. Forgive my ignorance, but I was under the impression that judges are supposed to be influenced by the law when approaching cases before them.

    Comment by James — 5/27/2009 @ 1:45 pm

  18. James, I know you prefer thinking of such things at a cartoon level, but do you think there is a judge in existence not influenced by their experience and background? Do you think white men aren’t influenced by their experience being white men when judging the law?

    The idea that we have such a thing as a purely objective judge is idiocy and naive. As far as judicial thinking goes, there are two schools of thought, that judges should just squarely aspire to that and try to shed all their trappings of experience and perspective (that they create a zen-like tabula rosa state), which is of course impossible, or that they should recognize that their perspective is influenced by a variety of factors and try to account for those, listen to those, or dispense with those as the situation arises. Incidentally, there is a huge amount of debate on this subject as far as gender studies / culture studies / racial studies is concerned, and it digs into the question of whether trying to achieve a “color blind” society is, in itself, a sort of condescending or naive thinking, or whether that functions, in effect, of trying to gloss over real differences and trying to homogenize perspective, which really means trying to homogenize perspective to level out towards the majority experience. The question, relating it back to the judiciary, is which is a more effective path towards objectivity in practice—to deny your influences and personal experiences, or to recognize and attempt to deal with them. I side with latter. So does, apparently, Sotomayor. The former—“I only care about the law! I am a blank slate!”—is, at best, a polite fiction. At worst, it is a willful self-lie and naivety that usually works more to bolster prejudices than dispel them. It is much better to think of that as an aspiration than a reality, which is precisely Sotomayor’s point.

    Greg Sargent:

    Read in context, it’s clear that Sotomayor was merely saying that it’s inevitable that a judge’s personal race-based and gender-based experiences will impact judging, particularly in race and sex discrimination cases.

    As a result, she said, while such formative experiences can be enriching and contribute to wise decisions, a judge should also be aware of them in order to avoid being wholly dominated by them. She vowed “complete vigilance in checking my assumptions, presumptions and perspectives.”

    “I can and do aspire to be greater than the sum total of my experiences, but I accept my limitations,” she said — the opposite of what critics claim she said.

    Racism, as Newt Gingrich or Tom Tancredo call the above quote, it is not. She’s saying she’s a latina judge, and that of course being a latina judge effects who she is and her perspective and thus her judgment. She hopes that it does so in a good way and that, on balance, having more judges in the system with minority backgrounds will lead to more robust judgments from the system as a whole on questions of race and gender.

    I agree that that single line, out of context, and even a bit in context, is inelegant and misleading. But taken in the broader context, not that anybody cares to, I think it’s fairly thoughtful. Save I would never use the construction that includes the word “better” in that sentence. But “instant disqualifier for the office”?

    Comment by Brad — 5/27/2009 @ 2:33 pm

  19. Jack:

    While I agree that “judicial activism” is one of the most empty phrases in modern politics, essentially meaning “any decision I don’t like,” I have to say that this meme of seeing Sotomayor’s comments as entirely defensable on purely legal definition grounds is a real semantic stretch. I see her comment as inellegant bordering on inappropriate, and that Judge S recognized it.

    Taking the phrase in question: “policy is made” you guys offer two interpretations.
    Brad: “Policy is made” = “law is interpreted” or
    James: “Policy is made” almost = “law is made”.

    James assumption seems closer to me than yours, Brad.

    Now don’t get me wrong, it is one comment in a gazillion, and I tend to think that she was really just trying to sell the importance of the appeals courts. My interpretation:
    “Policy is made” = “This is where the real shit goes down, dog.”

    Man. You guys.

    For the record, I don’t disagree with YOUR interpretation at the end of that blockquote, which is another level on which I’m objecting to James’ interpretation. James is implying, I think, that Sotomayor here is engaging in an advocacy of the fact that policy is made at the appellate court level, when in fact she’s just recognizing that this is so, which is undoubtedly is (does anybody want to make the claim that “policy is made at the appellate and supreme court level” is an untrue statement?).

    However, as to whether when she says “made” she means “law is interpreted” (my read) or “law is created” (James’)—again, full context. Skip to the 43 minute mark. I won’t even pull a huge blockquote. I will just give THE NEXT THREE SENTENCES after James’ clip ends.

    “The Court of Appeals is where policy is made. And I know this is on tape and I should never say that because we don’t make law. I know…I know. (some laughs) I’m not promoting it. I’m not advocating it. I’m…you know. OK. (more laughs)

    Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. It’s interpretation. It’s application.”

    Do you guys think I’m just making this shit up?

    Another take:

    So keep in mind the audience and the question here, said Tom Goldstein, a partner at Washington law firm Akin Gump and the founder of ScotusBlog, a widely read blog on the Supreme Court. Goldstein watched the full video, and simply sees it as Sotomayor noting that in comparison to district court judges, “there’s more policy involved” in the appeals courts.

    “The truth of the matter is, in the court of appeals, they are dealing with gaps and ambiguities in the law,” Goldstein said.

    There’s a lot for judges to interpret. Appeals court judges often have to make a call when a statute is unclear. In a sense, the policy is set by those calls made by the judges, even if they don’t want to.

    To use that one line from Sotomayor to paint her as an activist judge is misleading, he said.

    “She’s not a sweeping visionary ideologue in any way,” Goldstein said. “Conservatives who are genuinely concerned about the direction of the Supreme Court, they are sort of grasping at straws here. That’s an awful lot to put on one sentence.”

    David Garrow, a historian who follows the Supreme Court, agrees.

    There has always been two schools of thought on the role of judges, Garrow said: those who see the law almost as an academic exercise, trying their best to mechanically apply the law; and the legal realists, who believe interpreting the law involves making choices, discretion.

    “What she (Sotomayor) said there is simply the honest version of what any judge knows and realizes,” Garrow said. But “you’re not really supposed to acknowledge it on the record.”

    It’s unfair to extrapolate that comment to suggest Sotomayor would mandate policy, he said.

    “To anyone who knows the intellectual history of judicial decision-making, she’s just being honest, not activist,” Garrow said.

    Seriously, this is not an exercise in thoughtfulness. This is gotchya game-playing because she made a factual observation that put two keywords together that sets off a scripted response from the predictable parties who don’t particularly care what she meant just that she said the words.

    Comment by Brad — 5/27/2009 @ 2:52 pm

  20. James, I know you prefer thinking of such things at a cartoon level, but do you think there is a judge in existence not influenced by their experience and background? Do you think white men aren’t influenced by their experience being white men when judging the law?

    Brad, I will ignore your ongoing expressions of superiority, and just say that everybody, including judges, is influenced by their life experiences. I see this dynamic as a reality that we have to live with because humans are humans, and in the case of judges, who are above all supposed to be impartial in their interpretation of the law, it is a actually a flaw that cannot be avoided. However, under no circumstances should it be considered a qualifying virtue. In fact, I believe that one who displays the most evident ability to resist this aspect of human nature in the fulfillment of their duty to preserve the integrity of the law should be considered a more worthy candidate for the bench than one who does not display that virtue.

    Comment by James — 5/27/2009 @ 3:47 pm

  21. Well I already gave my non-confrontational interpretation of the “policy is made” line.

    As to the “wise latina”:
    “We’re now demanding that judges categorically deny that race and gender influence their perspectives?”
    You are pulling some kind of rhetorical bait and switch. Aside from James short response, neither I nor Rojas argued, or even implied that we expect perfect impartiality unaffected by life experience. But the statement,
    “… 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.”
    She is saying this without sitional qualifier, without limiting such a superior view to certain situations. Her contextual essay, which I fully understand and mostly agree with, does not suggest that I should interpret this statment in any way other than Wise Latina Woman’s decision > Wise White Man’s decision.

    Comment by Jack — 5/27/2009 @ 3:55 pm

  22. I am pulling no kind of bait and switch. I am giving you, flat out, the central thrust of her argument as she expresses it. At base, she is saying that it is probably a good thing that more minorities are represented in high courts, and it is in that context that she makes that single-sentence remark. Is your contention that she believes Latinas are inherently smarter than white men? Or have better judgment? What, exactly, do you think her point is? Take away the defensive posture or devil’s advocate crouch for a minute and paraphrase what you believe the point of her argument is. I could do it (indeed, have been), but I’ll just get accused of “twisting her words”.

    Comment by Brad — 5/27/2009 @ 5:58 pm

  23. To me, diversity on the court is a great thing, but I also think it is not the place for affirmative action. Candidates, regardless of their gender, ethnicity, etc., should be considered based on their judicial record and their allegiance to the existing jurisprudence that they are charged with keeping uncorrupted.

    If that sounds too simple for you, take it up with the framers of our constitution, not me.

    Comment by James — 5/27/2009 @ 6:11 pm

  24. Here’s why this bothers me.

    For Rojas, it is the virtual demonization of a sense of humor in the public realm that he wishes to avoid. For me, it is the demonization of thoughtfulness. We bitch all the time about the “dumbing down” of American discourse, but how can it NOT be dumbed down when anybody who seeks higher office is afraid of allowing themselves to be seen engaging an issue, intellectually and rhetorically meandering, working something over out loud even if that means not resorting to pre-scripted and well-worn cliches and “approved” messages? Here is an example, in both cases, where we have a Supreme Court justice not just providing rulings but sitting down with audiences and answering questions, thoughtfully!, in one case a totally innocent one about why clerks prefer appellate courts, in another how she believes her Latin heritage might influence her perspective as a judge. In both cases, instead of providing meaningless prattle, she chooses to actually answer the questions, honestly, and provide as much insight as she can into her way of thinking, even if that way of thinking is incomplete, imprecise, or not all the way “vetted” yet. And instead of engage thoughtfully where we might disagree, we take the inelegance that makes that kind of discourse worthwhile in the first place and crucify her with it, not because we really BELIEVE, I don’t think, that she means what her critics take her to mean. Just because we’re programmed too, because “she ought not be saying it that way”.

    I say horseshit. It is not unclear, if you engage intellectually with what she’s saying, what her point is (well, ok, the latin one is a little unclear). But we choose to not do that and instead knee-jerk to how we’ve been trained to deal with issues—through buzzwords, gotchyas, and trying to cram everything into the pre-scripted binaries we’ve been provided with (activist judge vs. non-activist judge, vehement minority anti-white multiculturalist vs. wise and objectively colorblind).

    And so, as every generation of politician passes, they’re more and more disinclined to ever get caught thinking out loud, and we wind up with a political discourse where precisely nothing of value is said, because it’s all pre-scripted soundbyte designed to be meaningless.

    I have not taken a position, at all, on Sotomayor. She very well could be everything James fears, for all I know. But what I do object to is this kind of gameplaying. It’s going to get to the point very soon, if we’re not there already, where you could write the confirmation hearing of every–and any—potential Supreme Court justice before even knowing the nominee. Would that we ALLOWED political figures the ABILITY to discuss issues deeply, particularly issues on which their thoughts are not fully formed, or where the questions raised don’t get fully or satisfactorily answered.

    Comment by Brad — 5/27/2009 @ 6:13 pm

  25. You know, Brad, if you want to express what I think, it would be a lot more efficient if I just gave you my blog password so it at least looks like me talking.

    As I stated earlier, I have not made any decision yet on Sotomayor. I simply posted my first reaction to the video clip I had seen. I then went on in subsequent posts to explain just why such rhetoric concerns me. I actually agree with you about the danger of driving out good thinkers with a puritan approach to dialogue (you might actually consider that the next time you feel the need to question my intelligence out of the corner of your mouth). What I think is important, particularly in the case of the SCOTUS, is that the goal should be the preservation and adherence to the Constitution of the United States. We already have too many litmus tests for this crucial and very potent branch of our government. I would rather we focus on removing those than adding new ones. You seem to disagree.

    Comment by James — 5/27/2009 @ 6:29 pm

  26. Man, talk about a defensive crouch.

    Look, since you seem insistent on interpreting my questions and comments in the worst possible light, I’m not sure there is a point to this at all. But I’m game:

    1. I am ambivalent about Judge Sotomayor’s appointment: I appreciate her background, respect her accomplishments, believe her qualified, and find her not at all radical.

    2. I have no problem with the policy making point.

    3. I understand and respect the vast majority of her race, gender and neutrality speech.

    4. You directly accused those of us questioning your interpretation of the “wise latina” line of “demanding that judges categorically deny that race and gender influence their perspectives” when we did no such thing. That is the bait and switch I refer to. It is always easier to argue against a straw man. Your inability to perceive the difference between the reasonable view that one section of the speech is over the line and the irrational expectation of perfect neutrality is either contrived or oddly tone deaf.

    5. As to the line itself: I have read the speech three times now. I have read at least five different analysis of it. I still see that one segment as inappropriate, as giving unnatural credence to the expectation that the richness and experience of a latina woman exceeds the richness and experience of a white male, and will thus, more often than not, produce better results.

    6. I can fully appreciate that the inclusion of differing points of view can, and probably does, produce better results on the whole. This is an argument she also made, but that is not what the sentence in question says. Better. More often than not.

    So I’m sticking with Jason Kuznicki http://www.positiveliberty.com/2009/05/suppose-someone-said.html on this one. But you know, us hard right reactionaries following a scripted response from the predictable parties who don’t particularly care what she meant” got to stick together.
    3. You directly accused those of us questioning your interpretation of the wise latina line of “demanding that judges categorically deny that race and gender influence their perspectives” when we did no such thing. It is always easier to argue against a strong man, Your inability to percieve the difference between viewing one section of the speech as over the line and expecting perfect neutrality is silly.
    4. I understand and respect the vast majority of her speech.
    5. I have read it three times now. I have read at least five different analysis of the speech. I still see that one segment as innappropriate expectation that the richness and experience of a latina woman exceeds the richness and experience of a white male, and will thus, more often than not, produce better results.
    6. I can fully appreciate that the inclusion of differing points of view can, and probably does, produce better results on the whole. This is a different argument, a different statement.

    Comment by Jack — 5/27/2009 @ 6:30 pm

  27. I should give you my password, Jack.

    Comment by James — 5/27/2009 @ 6:33 pm

  28. It is indeed a terrible shame that Judge Sotomayor’s willingness to engage on complicated issues and provide meaningful answers has so inhibited her career. She has no upward mobility at all, now.

    Comment by Jack — 5/27/2009 @ 6:37 pm

  29. 5. As to the line itself: I have read the speech three times now. I have read at least five different analysis of it. I still see that one segment as inappropriate, as giving unnatural credence to the expectation that the richness and experience of a latina woman exceeds the richness and experience of a white male, and will thus, more often than not, produce better results.

    I’ve said a few times now that I think the sentence was inelegant. If you were to take a context-independent read of that specific sentence, I think your interpretation is fine. I just have no idea why you would not just want to do that but demand it. But let’s be clear then: so your read is that Sonia Sotomayor believes Latina women to be superior to white men?

    If not, what, exactly, are you arguing about?

    I don’t believe you think that, but you keep insisting on it so forgive the straw men.

    If we can add the context back in for a second, maybe she’s saying that, on balance, having more minorities in the judiciary tends to produce “better” results, or at least more objective ones (in that the subjectives balance out better) as far as rulings relating to equality and minority-based discrimination is concerned?

    Comment by Brad — 5/27/2009 @ 7:09 pm

  30. It is indeed a terrible shame that Judge Sotomayor’s willingness to engage on complicated issues and provide meaningful answers has so inhibited her career. She has no upward mobility at all, now.

    Newt Gingrich, Rush Limbaugh, and Tom Tancredo have all explicitly and publicly declared Sonia Sotomayor a racist. In the last 36 hours.

    Oh, I’m sure she’ll do just fine in the end, but you can drop the snark, you better believe that further iterations of her exact same point will be couched into meaninglessness—hell, this one already was, really, save that line. Maybe that’s just as well, it’ll certainly serve the ambitious better particularly as we seem to be disarming ourselves of an expectation of original though or honest expression, but I can’t help but think that every time somebody takes a hit for something like this, we all suffer down the line.

    Comment by Brad — 5/27/2009 @ 7:13 pm

  31. Maybe she will eat a baby so we can really get this thread humming.

    Comment by James — 5/27/2009 @ 7:26 pm

  32. Jesus H Christ on a license plate. Ok, I had to take a step back cause my initial response involved the use of the word “fucking” alot. Which is probably why I could never have been a debater like, what, all of you people were in school and university. OK:

    Did you just skip right over where I said
    “1. I appreciate her background, respect her accomplishments, believe her qualified, and find her not at all radical.”
    or
    “3. I understand and respect the vast majority of her race, gender and neutrality speech.”
    or
    “one section of the speech is over the line”
    or
    “I can fully appreciate that the inclusion of differing points of view can, and probably does, produce better results on the whole. This is an argument she also made,”

    How much do I have to agree with you before you stop pretending that I’m dodging the point? After all of this, can you not see that we are divided on this by a small margin? Have I not placed qualifiers and elipses around my belief that that one phrase rings ugly? I guess not. I don’t think I have any more to say on the wise latina line.

    As to the snark: No, I won’t drop it. It is entirely on point. Shes a big girl, a SCOTUS nominee, and this kinda heat goes with it. Always. IIRC Alito was accused of enjoying the idea of strip searching children. There will always be ammunition. Always. Rush and Newt and Tancredo will come out of this looking like irrational blowhard reactionaries to the vast majority of observers that care to form an opinion, retaining only the core believers. They will do this because her record is highly defensible, and her supporters are just as busy spinning lies and exagerations, such as the “saving baseball” nonsense.

    After all of this, can you not see that we are divided on this by a small margin? Have I not placed qualifiers and elipses around my belief that that one phrase rings ugly? I guess not. I don’t think I have any more to say on the wise latina line.

    Comment by Jack — 5/27/2009 @ 8:21 pm

  33. Is there an echo in here?

    Comment by James — 5/27/2009 @ 8:46 pm

  34. Yeah, my editing is really poor. I tend to move things around while writing, and then forget that I left a phrase out of sight below my current line. Two times in this one thread is pretty sad. Wish I could edit a comment…

    Comment by Jack — 5/27/2009 @ 8:54 pm

  35. I personally don’t see how republicans can complain about a candidate’s observation about judges setting policy when the supreme court set an actual president into his chair in 2000 and they hope the supreme court to overturn abortion policy in future.

    I mean the recent conservative judge bloc went and put a time limit on equal pay for equal work claims.
    http://en.wikipedia.org/wiki/Ledbetter_v._Goodyear_Tire_&_Rubber_Co.

    If that isn’t setting a policy, I don’t know what is. I have not seen conservative uproar over these issues from any large conservative constituency.

    Therefore, I conclude that the problem with this candidate is not how she views the function of the court, since conservatives rely on this function all the time (and in the case of Don Siegleman
    http://harpers.org/archive/2009/05/hbc-90005030
    rely solely on judge discretion to maintain incarceration and persecution of man when the evidence is completely lacking), but on how she views the direction of the court.

    And I would say that any directional shift she gives would be more than counterbalanced by the radicals Alito, Roberts, Scalia, and Thomas.

    So I would suggest that conservatives should stop fucking whining, because you lost and this is what happens when you allow losses to happen. It happened to liberals for 8 years, largely due to an act of judicial activism. Give it a rest.

    Comment by thimbles — 5/27/2009 @ 10:12 pm

  36. Oh look! A new policy is set.
    http://rawstory.com/blog/2009/05/justice-stevens-reads-police-interrogation-dissent-aloud-from-the-bench/

    In a 5-to-4 ruling, the court overturned its 1986 opinion in a Michigan case, which forbade the police from interrogating a defendant once he invoked his right to counsel at an arraignment or a similar proceeding.

    That 1986 ruling has not only proved “unworkable,” Justice Antonin Scalia wrote for the majority, but its “marginal benefits are dwarfed by its substantial costs” in that some guilty defendants go free. Justice Scalia was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

    Comment by thimbles — 5/27/2009 @ 11:35 pm

  37. Wow. That really fucking pisses me off. This is serious Radley Balko bait.

    Comment by Jack — 5/27/2009 @ 11:54 pm

  38. You know, I go over and over that speech, and I STILL don’t see how the highlighted quote squares with the rest of it.

    Am I supposed to be delighted by the fact that she recognizes the complexities of this issue and then, apparently, comes down squarely on the wrong, dumb side?

    Comment by Rojas — 5/28/2009 @ 5:37 pm

  39. So maybe the highlighted quote is the outlier?

    That’s part of my contention – you’re getting hung up on a single sentence out of 1,000 and wondering how that sentence (not the other 999) sum up her judicial philosophy.

    For my money, the whole speech is kind of meandering and inconclusive, but I took that single sentence as note much more than a flat not in a fair-to-middling song.

    Comment by Brad — 5/28/2009 @ 6:35 pm

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