Free Markets, Free People

Sotomayor – The New “Conservative” Justice?

Move over Clarence Thomas and Sam Alito, here comes Sonia Sotomayor.

I’m not sure who that was appearing before the Senate Judiciary Committee yesterday, but I’m pretty sure it wasn’t the woman everyone expected. As Sen. Lindsey Graham said:

“I listen to you today, I think I’m listening to [Chief Justice John] Roberts.”

She talked about “settled law”, precedent, how a justice must set aside their emotions, even to the point of saying she disagreed with Obama’s declaration that in judicial decisons, “the critical ingredient is supplied by what is in the judge’s heart.”

Perhaps the most unconvincing portion of her testimony, however, was her defense of the “wise Latina woman” comment. She began by declaring that Justice Sandra Day O’Connor couldn’t have meant what she said when she said “a wise old man and wise old woman would agree on a judicial case’s outcome”. Surely, Sotomayor reasoned, if one of them came to a different conclusion, that wouldn’t mean they were unwise.

She claims her statement was a “rhetorical flourish which fell flat”. She pointed out that she was trying to inspire mostly Latino audiences when she included her “flourish” in a speech. A reminder of that so-called “rhetorical flourish” that was supposedly aimed at the O’Connor maxim:

“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.”

Yeah, I’m having difficulty with the connection as well. She went on to say:

“What I was talking about was the obligation of judges to examine what they’re feeling as they’re adjudicating a case and to ensure that that’s not influencing the outcome,” Sotomayor told Sessions. “We have to recognize those feelings and put them aside.”

Really? That’s what Sotomayor was talking about? Then I agree that it was indeed a rhetorical flourish which fell flat because I got precisely the opposite meaning from what she originally said.

Apparently she figured it was time to declare that whatever she said it should make no difference, because you see —

“To give everyone assurances, I want to state upfront, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every person has equal opportunity to become a good and wise judge, regardless of their background or life experiences.”

Maybe it was just me, but I felt that Ms. Sotomayor was saying pretty much whatever the task demanded yesterday. I’m not at all assured that she believes anything she said in her “assurance” above. I thought her explanation about the “wise Latina” remark was poor at best.

That’s not to say she won’t be confirmed for the SCOTUS. She most likely will. In fact, I’d bet on it. However, that doesn’t mean she’s fooled anyone with the show she’s putting on during her confirmation hearings.

~McQ

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9 Responses to Sotomayor – The New “Conservative” Justice?

  • And it’s the truth when Sotomayer starts to get criticism from liberal law professors

    Speaking only for myself (I guess that’s obvious), I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?
    Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.
    Louis Michael Seidman Georgetown law professor

  • I’ll say it outright: She perjured herself yesterday.

    • I saw this on Volokh’s page today (linked to the Federalist site)

      Speaking only for myself (I guess that’s obvious), I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?
      Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

  • I don’t know if she perjured herself, but her ‘understanding’ of ‘settled’ law left a lot to be desired.  Did you read what she had to say about Kelo?
    “[T]he issue in Kelo, as I understand it, is whether or not a state who had determined that there was a public purpose to the takings under the — the takings clause of the Constitution that requires the payment of just compensation when something is — is condemned for use by the government, whether the takings clause permitted the state, once it’s made a proper determination of public purpose and use, according to the law, whether the state could then have a private developer do that public act, in essence. Could they contract with a private developer to effect the public purpose? And so the holding as I understood it in Kelo was a question addressed to that issue.”
    Her take on Kelo is that it is OK for the state to contract with a private developer?

  • No doubt about, it, shark. I don’t know which is more deserved, charges or an Academy Award for the performance she put on. La puta racista mintió ayer, y *eso* es la verdad.

    She’s ruled against qualified candidates for promotion, and she’s ruled on the side of extortionists. Then again, as I’ve said, that makes her perfect as Souter’s replacement.

    Here are simple questions to put to Sotomayor, or in fact any judicial nominee, whether or not he/she tries to use “precedent” as assurance:

    “Do you believe a justice should be bound by precedent? If you do, then would you issue rulings today citing the Dred Scott decision, and do you think the Brown v. Board decision was wrong because it overturned the established precedent of Plessy v. Ferguson?”

  • Somewhat OT, Laurence Tribe has this to say about Sotomayor’s assertion that a judge can and should set aside ANY personal views and judge the law merely on the facts and the written letter:

    “Attending to one’s prejudices and doing one’s best to set them aside is admirable. Convincing oneself that one can render judgments in a way that makes one’s personal experiences and views irrelevant is dangerous self-deception. Why, after all, do the justices so often disagree about what result “the law” commands? What accounts for their different perceptions of the rules of law that govern disputes and of the facts involved in those disputes? Justice Antonin Scalia, among others, has publicly said that his own background and upbringing necessarily influence how he decides cases. How could it be otherwise?

    “Even if judges and justices were computerized robots, the way they decide cases would have to be influenced by the “background” built into their software. But judges are not robots, and the reason we have nine justices rather than one is precisely that we hope the differences among them will permit a collectively wiser outcome to emerge — that we think nine minds, nine lives, will yield better results than one.”

    http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR2009071401783.html

    I admit to Tribe’s logic, i.e. it seems reasonable to assume that ANY person, no matter how hard he might try, will inevitably be influenced in his interpretation of facts and law by his background (though, of course, he should make every effort to compensate for this). However, my view of the way liberals interpret the law is NOT that they are influenced by their “life experiences”, but rather have a outcome that they desire and shape their interpretation to make that desire a reality (the essence of judicial activism). I would also add that it seems to me that Prof. Tribe is implying that this is OK for judges to be influenced by their prejudices; one wonders if he’d be so blithe on this topic if the nominee in question was a white man who’d (on several occasions) extolled the ability of wise white men to reach a correct interpretation of the law.

    Though it’s small consolation for having to accept a liberal racist (but I repeat myself) on the SCOTUS, I would like to quote the commenter “Judge Wapner” at AoSHQ regarding the lies and propoganda the dems have had to use to get Sotomayer this far:

    “We’ve won the argument. That’s why their nominees feel they must pretend to be judicial conservatives. To secure a nomination, a Sotomayor will dishonestly claim she doesn’t believe in foreign law, but you never see an Alito claiming to believe in ‘emanating penumbras’.”

    http://minx.cc/?blog=86&post=289670#c5393403

  • so let’s recap. in her own words, she’s a racist. she’s long been a member of a racist organization; also a sexist one. the record shows her to be a power-mad bench bully. her own words show that she believes deeply in judicial activism, to the point of being a-ok with judges making law. she has no problem with underhanded tactics to advance her agenda, as the ricci case demonstrates. her own (liberal) law prof allies have publicly excoriated her for A) ignoring the constitution and B) lying under oath to congress. and on and on.
    10 bucks says she’s confirmed by no worse than 85-15. IIRC, the gop only managed to muster up 7 votes against ginsberg, who was even more demonstrably racist, and (we now know) a white supremacist eugenicist as well. i really don’t know why she’s even bothering to lie – the bulk of the GOP certainly doesn’t have the nuts to vote against her. that would be *mean*.  better get going on them guns, gold, and ammo, gang. time’s a-wasting.