Posted by Jack @ 8:46 pm on May 27th 2009

The State of Objections to Judge Sotomayor: Bringing It Down A Notch

Let’s catalog the objections, and score them for popularity, wing nut hypocrisy, and overall legitimacy. I’ll start. (Blanket credit: Most, though not all, of these come from Andrew Sullivan, natch):

1. The Empathy Thing. You know, the idea that Obama wanted a judge with empathy, so she probably has it, seems to admit to it, and this is Really Bad. It is clearly inappropriate for a judge to have empathy with people.
Popularity: High, but waning.
Wingnut Hypocrisy quotient on this complaint runs high, particularly given Judge Alito’s apparent endorsement of empathy.
Legitimacy: The pursuit of perfect neutrality is indeed a noble goal, but for reals? No empathy at all? Gotta say Very Low.

2. “Where Policy is Made” Referencing her dialogue regarding advantages of clerking in the appeals court system.
Popularity: High, steady
Wingnut hypocrisy rating: Medium. I am highly skeptical of all “judicial activism” accusations, seeing this increasingly abused and empty phrase as a stand in for “rulings I don’t like.” How loud did the conservatives complain about judicial activism when Oregon’s euthanasia / assisted suicide legislation got overturned by the judiciary?
Legitimacy: Low based on her follow on paragraph and a wide reading of the nature of the appeals court and its role in interpreting law. Brad points to this post at Anonymous Liberal

3. “Wise Latina” vs. “White Male”. We have been debating the meaning of her sentence, particularly in the context of her extensive commentary on race and gender versus neutrality, in the comments to this post. It seems to come down to your willingness to see the comment as an inelegantly stated extension of her quite rational central theme, or as a bridge-too-far false note indicating an unnatural preoccupation with the benefits of her race and gender.
Popularity: High and growing.
Wingnut hypocrisy rating: Unknown, but its early. Oops, almost forgot about Senator Jeff Sessions, ranking GOP member of the Senate Judiciary committee, and his colorful past. So really HIGH hypocracy rating.Putting Tancredo out front on this seems like a bad idea.
Legitimacy: Low to Medium at best. The context of the speech and her record on the bench seriously undermine the charge.

4. Overturn rate by the Supremes. Apparently Sotomayor has had five cases in which she wrote the majority opinion taken up by SCOTUS, three of those were overturned. Nate Silva points out that this is actually a good statistic for her, as SCOTUS overturns roughly 75% of the circuit court cases it takes, because the Supremes are selecting cases that they have a strong suspicion need to be overturned.
Popularity: Medium and dropping. Too wonky, involves numbers and percentages.
Wingnut hypocrisy rate: I’m guessing high, but unknown, because I do not feel like investigating overturn rates for favored conservative judges.
Legitiacy: Very low, although the reason for overturning could be quite relevant.

5. Temperament, i.e., the Jeffrey Rosen hit piece.
Using entirely anonymous sources, Rosen questioned her intellect, judicial temperament, and general suitability. Apparently, no onomous sources were available for this reclusive and obscure judge so recently appointed to the bench. Greenwald responds (at length, of course.)
Popularity: Very High. Rosen’s piece immediately became the standard talking point memo for right wing outfits.
Wingnut hypocrisy factor: Really high. Temperament and intelligence were not exactly hallmarks of plenty of Bush nominees and appointees. See Miers, Harriet and Brown, Brownie.
Legitimacy. Very Low, the Rosen piece was a total hack job, and its not like Scalia is lap dog. A little fire on the bench would hardly be unusual.

6. The Dead Grandmother Gambit. Greg Mankiw’s deceased grandma believed in savings, and Sotomayor doesn’t have a lot. So she obviously has some screwed up priorities and poor decision making skills. See Nate Silva for an alternative view.
Popularity: Blessedly Low
Wingnut Hypocrisy rating: I can’t even begin to calculate this.
Legitimacy: Very Low.

7. Her name is unnatural. That is, placing the emphasis on the last syllable is wrong wrong wrong and probably racist. Or reverse racist. Or at least Unamerican.
Popularity: Please let it stay low.
Wingnut Hypocrisy: Medium, as the creator of this criticism lists people he admires with pronunciation preferences.
Legitimacy: Lower than Low. Seriously, this is beyond silly. My last name is initially pronounced wrong by 90% of people I meet. Not one person has had the gall to suggest that I change the way I and the rest of my family pronounce it. They politely correct themselves. Nativism run amuck.

8. Actual Judicial Rulings.
Popularity: Low. This just doesn’t seem important.
Wingnut hypocrisy rating: Yes.
Legitimacy: High, in that this is what we should all be looking at, but Low, because few of us are. Ed Brayton is. That’s a start.

Brad adds:
9. Intellect. Interestingly, one can find this on both the regular right but also the hardcore left. The right’s claim is she’s an affirmative action nominee. The left’s claim isn’t all that dissimilar, saying Obama had an opportunity to get really bold and put a liberal lion on the court that would set precedent for a generation of theorists and write opinions that would be poured over for centuries, and instead he went with a person who is perfectly qualified and perfectly competent and surely passes muster but who doesn’t seem to be someone who is going to really challenge the status quo on the court or really skew things in a liberal direction in the way, say, Scalia does on the right. I was actually hoping Thimble might drop in, as it seems to be coming from this wing of the party (what I might describe as the hyper-intellectual far-left). So far, I’ve only seen this expressed in comments at HuffPo, Dailykos, or, occasionally, someone like Michael Moore.
Popularity. Low, but by the same token, under the radar.
Wingnut hypocrisy rating: Actually fairly low. Nobody could deny that Bush’s nominees were intellectual heavyweights. Ironically, Roberts has fallen in line as a more or less completely mediocre stand-in Republican, while Alito, the stand-in lapdog, has himself some pretty good moments now and then. Harriet Miers doesn’t really damage this rating because, frankly, it was the wingnuts who buried her.
Legitimacy: Unclear. I doubt any charges of “she’s a dummy” stick; she’s clearly not. But I do think that Obama will face more pressure than he might otherwise with his next appointment to go really far left. (Jack’s comment: I see this as LOW. Princeton, Harvard, young appointee to the bench. She may not have the intellect of SCOTUS’ brightest stars, but she clearly has enough to meet the standard.)

James insists that
10. She will eat a baby…. I have no explanation for this. The point, I think, is that her nomination, based upon her compelling narrative, is so secure that she could eat a baby on live TV and still get nominated. It reminds me of The Poorman Institute’s Wilford Brimley BTK point. The real point is that, despite her annointing, and even without aligning oneself with the wingnut right, you can still honestly inspect her record and find areas of concern. Not all criticism should be assumed to be the product of partisan hackery.
Popularity: Immeasurably low, but significantly more frequent now than it was two hours ago.
Wingnut hypocrisy: I think this may be clean. I know of no wingnuts that have actually endorsed a baby eater.
Legitimacy: TBD.

Brad finds a doozy.
11. Pigs feet jurisprudence. This is the… novel? theory that Judge S believes her diet provides special insight into judging. Words fail. From The Hill: This has prompted some Republicans to muse privately about whether Sotomayor is suggesting that distinctive Puerto Rican cuisine such as patitas de cerdo con garbanzo — pigs’ feet with chickpeas — would somehow, in some small way influence her verdicts from the bench. ” And Talking Points Memo: “I guess the chain goes something like this: 1). Sotomayor implied that her Latina identity informs her jurisprudence, 2). She also implied that Puerto Rican cuisine is a crucial part of her Latina identity, 3). Ergo, her gastronomical proclivities will be a non-negligible factor for her when she’s considering cases before the Supreme Court.”
Popularity: Awesome.
Hypocrisy Watch: Republicans seem weirdly transfixed with what a diet says about a person, be it arugula, hamburgers with mustard only, or pig’s feet.
Legitimacy: Unlike one day and two hours ago, I’m going to go ahead and just assume this was somebody tripping over their own rhetorical feet in service of a larger point that’s pretty clear. If anything though, the mockability factor will probably not do conservative critics any good.

17 Comments »

  1. Nice, synopsis, Jack. It is all rather moot since, unless she eats a baby, she is gonna be quickly confirmed. If she happens to eat a baby, then she her confirmation process will be slowed by approximately eight minutes.

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

  2. Agree with James.

    I’ll add one, though it’s kind of a spinoff of the Jeffrey Rosen stuff.

    9. Intellect. Interestingly, one can find this on both the regular right but also the hardcore left. The right’s claim is she’s an affirmative action nominee. The left’s claim isn’t all that dissimilar, saying Obama had an opportunity to get really bold and put a liberal lion on the court that would set precedent for a generation of theorists and write opinions that would be poured over for centuries, and instead he went with a person who is perfectly qualified and perfectly competent and surely passes muster but who doesn’t seem to be someone who is going to really challenge the status quo on the court or really skew things in a liberal direction in the way, say, Scalia does on the right. I was actually hoping Thimble might drop in, as it seems to be coming from this wing of the party (what I might describe as the hyper-intellectual far-left). So far, I’ve only seen this expressed in comments at HuffPo, Dailykos, or, occasionally, someone like Michael Moore.
    Popularity. Low, but by the same token, under the radar.
    Wingnut hypocrisy rating: Actually fairly low. Nobody could deny that Bush’s nominees were intellectual heavyweights. Ironically, Roberts has fallen in line as a more or less completely mediocre stand-in Republican, while Alito, the stand-in lapdog, has himself some pretty good moments now and then. Harriet Miers doesn’t really damage this rating because, frankly, it was the wingnuts who buried her. on exactly these grounds.
    Legitimacy: Unclear. I doubt any charges of “she’s a dummy” stick; she’s clearly not. But I do think that Obama will face more pressure than he might otherwise with his next appointment to go really far left.

    Comment by Brad — 5/27/2009 @ 9:31 pm

  3. Actually, Ed Brayton (which I just now clicked through on) reposts a comment that has made a lot of rounds that speaks to this. A comment from Volokh:

    As a conservative lawyer, I’m fine with this pick. As far as appellate judges go, Sotomayor is generally undistinguished. She’s a political pick designed to appeal to an interest group. Obama has 59, practically 60 seats in the Senate, and he could have named a strong, dynamic liberal who would have been a game-changer (even if only taking Souter’s seat). He didn’t.

    Sotomayor was the safe choice: Hispanic, female, compelling life story, and few controversial decisions. She’s a reliably liberal vote who doesn’t move the ball in any significant way. There could have been much stronger picks (Kathleen Sullivan, Pam Karlan, even Diane Wood), but Obama, ever the politican, made a political decision.

    I haven’t heard anybody on the left really challenge that core point.

    Comment by Brad — 5/27/2009 @ 9:33 pm

  4. I think I will keep this post in continuous edit by adding in whatever commentors come up with, agreed?

    Also, one of my primary motivations for doing this at all was to emphasize how wrapped around the axle we have become in the other thread. That probably goes without saying, but redundancy never stopped me from repeating myself.

    Comment by Jack — 5/27/2009 @ 9:35 pm

  5. Oh, and on the “actual judicial opinions” thing, I’m having trouble finding good stuff to post. What Ed Brayton is quoting from is mostly the CNN.com roundup of “notable cases” and the AP’s likewise list, as well as a few liberal blogs that have quoted some. Maybe it’s just me, but it seemed pretty top-heavy on racial discrimination kind of cases, which don’t really interest me much in terms of what I see as the live wires facing the court (as Sullivan said, it’s so 1995). The stuff that I want to look over and digest are privacy, executive, detention, technology, fourth amendment, federalism/eminent domain, that kind of stuff, and there is some, and it’s mostly non-controversial, but there’s not much of it. I don’t know if that’s a function of the kind of cases she heard or just an over-emphasis on it given her race and gender.

    Comment by Brad — 5/27/2009 @ 9:38 pm

  6. I assume you’re checking the usual suspects. I havent checked Volokh today, but that would be my starting point for rational conservative and libertarianish critical case analysis of her rulings. Gotta love Ilya Somin and Dale Carpenter.

    Comment by Jack — 5/27/2009 @ 9:42 pm

  7. Yeah, frankly I’ve been buried in research work that I get paid for, so I haven’t had much time to give this a full-on look, and my recreational internet time has been sucked up by arguing with you two idiots. :)

    Probably time to put Volokh back on the blogroll.

    Comment by Brad — 5/27/2009 @ 9:48 pm

  8. I’m debating if that last post would have been funnier if I’d substituted “racists” for “idiots”. I think yes.

    Comment by Brad — 5/27/2009 @ 9:50 pm

  9. Yet another reason we need comment editing.

    Comment by Jack — 5/27/2009 @ 9:54 pm

  10. Most of the folks I read are in shock that the conservatives, who threatened the nuclear option because a president’s discretion must be observed, are openly using race politics to sully Obama’s candidate, who happened to be a Bush Sr. pick for the court way back when.
    http://krugman.blogs.nytimes.com/2009/05/27/a-note-on-identity-politics/

    Most of the people I read are too focused on health care and the bailout issues to really focus on the judge issue, but what it looks like is that Obama went with a safe and highly qualified candidate and, surprise, it wasn’t safe because the pit bulls attacked anyways. Why? Because they care about meat, so they’ll bite anything with an “O” on it.

    Comment by thimbles — 5/27/2009 @ 10:29 pm

  11. I think I will keep this post in continuous edit by adding in whatever commentors come up with, agreed?

    I would submit that the “baby eating” lobby is under-represented in your ever-updating post. I find that discriminatory on your part, Jack.

    Comment by James — 5/27/2009 @ 11:17 pm

  12. James,
    Refresh, read it, and rejoice.

    Comment by Jack — 5/27/2009 @ 11:41 pm

  13. HAHAHAHAHA! Jack, you rock!

    Comment by James — 5/27/2009 @ 11:44 pm

  14. I’d suggest that she may well be pro-life, not only due to her Catholic background, but because of the well known fact that aborted babies are merely appetizers whereas term babies are full meals.

    Comment by thimbles — 5/28/2009 @ 12:32 am

  15. Are babies considered pork?

    11. Pigs feet jurisprudence.

    The Hill

    Sotomayor also claimed: “For me, a very special part of my being Latina is the mucho platos de arroz, gandoles y pernir — rice, beans and pork — that I have eaten at countless family holidays and special events.”

    This has prompted some Republicans to muse privately about whether Sotomayor is suggesting that distinctive Puerto Rican cuisine such as patitas de cerdo con garbanzo — pigs’ feet with chickpeas — would somehow, in some small way influence her verdicts from the bench.

    Curt Levey, the executive director of the Committee for Justice, a conservative-leaning advocacy group, said he wasn’t certain whether Sotomayor had claimed her palate would color her view of legal facts but he said that President Obama’s Supreme Court nominee clearly touts her subjective approach to the law.

    Talking Points Memo:

    Slightly gobsmacked, I called Bolton earlier today and asked him whether this was for real–whether any conservatives were genuinely raising this issue. He confirmed, saying, “a source I spoke to said people were discussing that her [speech] had brought attention…she intimates that what she eats somehow helps her decide cases better.”

    Bolton said the source was drawing, “a deductive link,” between Sotomayor’s thoughts on Puerto Rican food and her other statements. And I guess the chain goes something like this: 1). Sotomayor implied that her Latina identity informs her jurisprudence, 2). She also implied that Puerto Rican cuisine is a crucial part of her Latina identity, 3). Ergo, her gastronomical proclivities will be a non-negligible factor for her when she’s considering cases before the Supreme Court.

    Got it? Good. This is the conservative opposition to Sotomayor.

    Bolton said that Levey was mum on the, um, culinary analysis, and pivoted back to his standard critique of the Second Circuit Judge, which I highlighted earlier.

    For what it’s worth, “patitas de cerdo con garbanzo” are not “pigs’ tongue and ears.” They’re pigs’ feet with chick peas (a.k.a. garbanzo beans)… and they’re delicious.

    Popularity: Awesome.
    Hypocrisy Watch: Republicans seem weirdly transfixed with what a diet says about a person, be it arugula, hamburgers with mustard only, or pig’s feet.
    Legitimacy: Unlike one day and two hours ago, I’m going to go ahead and just assume this was somebody tripping over their own rhetorical feet in service of a larger point that’s pretty clear. If anything though, the mockability factor will probably not do conservative critics any good.

    Comment by Brad — 5/28/2009 @ 12:36 pm

  16. Ok, adding a shorter version of that odd one.

    Comment by Jack — 5/28/2009 @ 8:49 pm

  17. 12. She’s a Bitch

    Karl Rove, the New York Times, and others have been floating the criticism that Sotomayor is “abrasive” and “opinionated” and question her “temperament”. Rove—the go-to “run it up the flagpole” guy in the GOP right now—says she is “combative, opinionated, argumentative”. Terrible qualities in a judge or prosecutor!

    Popularity: Medium, and rising.

    Hypocrisy Watch: When Karl Rove calls you combative and the New York Times calls you opinionated…

    Legitimacy: Hard to say. That she is a poor consensus builder would indeed be a knock on her—if you were a liberal. But that she’s “abrasive” “opinionated” and “combative” seems like dog whistles, frankly, for misogyny or inherent mistrust of powerful and opinionated women more than legit criticisms of her judicial temperament. To that end, I sort of question the strategy of trying to avoid seeming racist by falling back on seeming sexist.

    Comment by Brad — 5/29/2009 @ 9:08 pm

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