Free Markets, Free People
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.
While there is all sorts of silly criticism emerging on the right (including the pronunciation of her name and the fact that she likes certain latin foods), there is an emerging criticism which I think has some validity. Most of of focuses on a speech she delivered at UC Berkley in 2001 and published later by The Berkeley La Raza Law Journal.
“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,” Sotomayor said.
“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.”
Although she attempts to have it both ways (“I agree” and “we do a disservice”), she seems to really be claiming that some level of gender or racial “empathy” is necessary to render “fair” judgments. And that only those who have lived that life are capable of such renderings. Here she essentially admits that to be the case as she perceives it:
“Personal experiences affect the facts that judges choose to see,” Sotomayor said. “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.”
How else do you interpret her statement except to say, “we can’t change the fact that personal experiences affect our work and the best we can hope for is we will “take the good” for those experiences and apply them …?”
That, of course, helps explain the statement most of the right object too the most, i.e.:
“…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.”
Given what she said above, this makes perfect sense. Although she claims to agree “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”, she then builds the case that a) such isn’t really possible, and b) in fact race and gender based experience is a positive that should be injected in such “reason of law”.
Her ruling in the case of the 18 white firefighters in New Haven CT seems to indicate she is indeed inclined to use race and gender bias in her decisions.
That is a legitimate and troubling point and certainly one which requires a very close look. But Republicans need to lay off the silliness (and words like “racist”) and stick with the legitimate points of contention her nomination bring. And they need to explain their concerns in a way which is both complete and easy to understand.
Some reactions from the right to the Sotomayor SCOTUS nomination:
Roger Pilon, the Cato Institute’s Director of Constitutional Studies:
In nominating Second Circuit Judge Sonia Sotomayor to fill the seat of retiring Supreme Court Justice David Souter, President Obama chose the most radical of all the frequently mentioned candidates before him.
Ilya Somin, George Mason University Law School:
I am also not favorably impressed with her notorious statement 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.” Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought.
Dave Kopel, Research Director at the Independence Institute:
Judge Sotomayor’s record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms.
William Redpath, National Committee Chairman of the Libertarian Party:
By nominating Sonia Sotomayor, Barack Obama has made it clear he prefers an activist for his personal causes over a rational interpreter of law.
So the gathering argument from the right seems to be “activist”, “identity-politics”, hostility to the 2nd amendment and “radical”.
I see nothing (unless there is some hidden problem with taxes or nannys we don’t know about) that is going to keep this nomination from going through given the Democrats numbers in the Senate. But it will be interesting to see how long, how hard and how nastily the Republicans choose to fight this. I’m not sure this is the SCOTUS nominee hill to die on.
As a surprise to almost no one, Obama went with the candidate who fills the most quotas for his first Supreme Court pick. Since I’ve already covered what sort of Justice I think she’d be, I’ll just note that I think Obama picked the least qualified and most political of the three top contenders (Kagan and Wood being the others). Other than that, I don’t think her nomination will make much difference in the grand scheme of things.
Ilya Somin arrives at basically the same conclusion, and along the way takes special exception a particular statement from Sotomayor (my emphasis):
I am not yet sure what position to take on President Obama’s selection of Sonia Sotomayor. My general sense is that she is very liberal, and thus likely to take what I consider to be mistaken positions on many major constitutional law issues. I am also not favorably impressed with her notorious statement 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.” Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought. Worse, it implies that she believes that it is legitimate for judges to base decisions in part on their ethnic or racial origins.
Expect to see that quote get much airtime as Republicans seek some ground from which to undermine Sotomayor’s nomination.
As for whether or not the Republicans should go to the mat on this, it seems to me like a bad idea. I think there are certainly some troubling aspects to Sotomator’s candidacy (such as her quote above), but there is also almost zero possibility that she will not be confirmed. With 59 Democrats in the Senate, there is also little hope of fillibustering the nomination. Accordingly, if Republicans choose this particular hill to die upon, they spend political capital for no gain, and risk losing the ability to generate opposition to any subsequent nominees who may have more substantive influence on the direction of the Court (e.g. a replacement for Kennedy or Scalia).
Since it appears that taking on Sotomayor’s nomination is rife with bad consequences for the GOP, I think it is a very safe bet that they will pull out all the stops in order to oppose her. This will prove once again that, sometimes, it takes great effort to earn minority party status. In that endeavor, expect the Republicans to leave no stone unturned.