The Sotomayor Nomination

May 27th, 2009

President Obama has apparently decided that Sonia Sotomayor is the best-qualified non-white female in the country to serve as an associate justice on the Supreme Court.  Sotomayor, currently a judge on the U.S. Court of Appeals for the Second Circuit in New York City, has a long and well-documented career as a jurist.  By all accounts, she’s a competent judge, and that plus being a female Hispanic virtually guarantees her confirmation by the Senate unless some disqualifying issue surfaces.

This nomination deserves the same close scrutiny that any Supreme Court nomination receives.  But will that really happen?  Will moderate conservatives and perhaps a few liberals who might have misgivings about Sotomayor have the guts to actively oppose her nomination, given her special status?  Even more important, will senators who might not think she’s the best qualified person in America have the courage to vote against her?

Early perceptions of Judge Sotomayor create cause for concern.  Perhaps the most serious are a number of things she’s said personally, quoted widely in sources such as The New York Times and The Washington Times:

Speaking at Duke University Law School in 2005, Judge Sotomayor said the “Court of Appeals is where policy is made.” …

Immediately realizing she was on thin ice, the judge continued: “…and I know this is on tape and I should never say that, because we don’t ‘make’ law.” To much laughter, and with facial and hand gestures to indicate that her next line was to be taken with humor as a useful fiction, she added: “I’m not promoting it and I’m not advocating it.”

Really?  People who’ve spent even a little time studying American government and constitutional law and history could be forgiven a double-take on that one.  Congress makes policy and law, the executive branch executes it and adds implementing policy, and the courts interpret the law within the framework of the Constitution.  That’s Political Science 101, or even basic civics, assuming schools still teach it.

Sotomayor also said:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. … I 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.

If a white male nominee had said that in reverse, how long would his nomination have survived?  Maybe a nanosecond or two?

And, evoking memories of a heated controversy that cost a university president his job:

She also accepted as potentially valid the idea that the “different perspectives” of “men and women of color” are due to “basic differences in logic in reasoning” due to “inherent physiological or cultural differences.”

Larry Summers, phone Harvard; all is forgiven.

Hardcore liberals will support Sotomayor despite everything, and hardcore conservatives will oppose her regardless of her qualifications.  Both deserve to be ignored because they’ve abandoned thought for ideological purity.  What shouldn’t be ignored are opinions that run counter to expectations.  One of those came from Jeffrey Rosen, a reliable liberal writing at the reliably liberal The New Republic a few weeks ago, when Sotomayor was merely a front-runner for the nomination.  This is required reading for anyone who would like to make a well-informed decision on her nomination.

Rosen discussed her overall qualifications and interviewed a number of people who know her well and have worked with her.  What emerges is a picture of a judge in the front ranks, although she isn’t notably intelligent, relatively speaking; she’s abusive to others, including being “a bully on the bench;” she’s condescending to her fellow judges; she knows the law but filters it through her personal biases; “her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees.” 

Rosen also reports positive views of Sotomayor, including her warm and cuddly treatment of law clerks.  But his overall conclusion is that she wasn’t the best among the front-runners:

I haven’t read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths. It’s possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities. But they’re not motivated by sour grapes or by ideological disagreement–they’d like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard. Given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble.

Now that Sotomayor has been nominated, Rosen is scrambling to get back on the liberal bandwagon.  Writing at The Huffington Post, he said:

Of course, Judge Sotomayor should be confirmed to the Supreme Court. She obviously wasn’t my first choice, for reasons I reported three weeks ago, having mostly to do with concerns about her temperament reported to me by former clerks and New York prosecutors. But I hope and assume the White House wrestled seriously with those questions of temperament and weighed them against Sotomayor’s other obvious strengths.

Mr. Rosen, we all hope that President Obama “wrestled seriously with those questions of temperament,” ability, and intelligence.

Finally, there’s a highly divisive issue expected to become front-page news during the Senate confirmation process.  Ricci v. DeStefano is expected to be decided soon by the Supreme Court.  This case came up from Sotomayor’s court, where she was one of a three-member panel of judges who decided to affirm a lower-court ruling that went against white firefighters who objected to racial bias in promotion selections.  After a test on which no blacks scored high enough to be promoted, the test was thrown out.  Sotomayor and her two colleagues summarily ruled against the firefighters, with no explanation of the constitutional justification, if there was one.  The Supreme Court is widely expected to reverse the ruling from Sotomayor’s court, generating an issue worthy of discussion during her hearings.

And in the “what difference does it make” department, Sotomayor might not be the first Hispanic justice on the Supreme Court if she’s confirmed.  That distinction may belong to Benjamin Cardozo, whose Iberian heritage is beyond question.  However, it depends on your perception of what is Hispanic or Latino, whether it matters if one’s ancestors spoke Spanish or Portugese, et cetera ad nauseum.  This is a prime example of the silliness that the culture wars often descend to.

Advice to Republicans:  Go through the motions, raise the right questions, behave like gentlemen and gentleladies, accept defeat gracefully if no real disqualifying scandals surface, and save your strength for another day.  In other words — relax, bend over, and enjoy it if you can.

My vote, as though it matters?  I don’t know yet; I could go either way.

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14 Responses to “The Sotomayor Nomination”

  1. Dee |

    By the way, that first quote about being a Latina woman is taken out of context. If you included the next few sentences, you would note that she is basically saying, look, we are who we are (e.g. how we are brought up, raised, the products of our culture and background, etc.), but that even still, she has to make sure to preserve her neutrality when interpreting the law. Believe me. As someone who agrees that there should be stronger liberal representation on the Court to balance the Scalia block, I agree that Sotomayor is a smart pick. Her experience pre-nomination is leaps and bounds above any other ascending justice.

  2. Brian Bagent |

    Dee, we don’t need any liberals or conservatives on the USSC. What we need are judges who aren’t going to make things up as they go along. That means they need to recognize that there are limits on federal power. That means that the yardstick by which they decide cases is the constitution and only the constitution, not some opinion of a judge in The Hague or any place else.

  3. Tom |

    Dee, I think you meant the second quote. Here’s the text of Judge Sotomayor’s 2001 lecture, as provided by The New York Times. The quote(s) you refer to are on the linked page, along with what’s above and below.

    I don’t disagree with everything she was trying to say. Nevertheless, she meant what she said, and the question is whether we think that judges should make decisions on the basis of their ethnicity and gender. I think that’s just the opposite of the ideal, and there seems to be little doubt that it’s the kind of thinking she brings to the bench.

    I may well end up supporting her once the confirmation process is over. But I’ll always regret the fact that her selection was based on ethnicity and gender from the beginning, and I’ll never be comfortable that a Supreme Court justice believes that judges make policy and decide cases at least in part on their ethnicity and gender.

    Brian, I agree in principle. But the reality is that judges are people with their own political views, prejudices, and opinions. The best we can hope for is judges who can set aside their personal preferences and opinions in favor of the law and the Constitution and who understand that they aren’t policy makers. Judge Sotomayor has sometimes shown that ability, but I have to wonder where she’ll come down on issues that relate to race, ethnicity, and gender. The things she’s said give me pause, to say the least.

  4. Brian Bagent |

    Tom, the problem with accepting that is that for about 150 years, justices largely did set aside their prejudices. Plessy v Ferguson is an example of that. There is nothing in the constitution which indicates that the USSC should have decided other than they did in that case. There was a very long tradition on the court of deciding cases on their constitutional merits. That changed in the 30s with FDR and his threats to appoint additional justices who believed as he did, and it picked up a full head of steam under Earl Warren.

    To have justices deciding cases on their prejudices sets us up for a tyranny of the judiciary. I’ll send you a case of Fancy Lawnmower if you can tell me who first warned us about a tyranny of the judiciary.

  5. Tom |

    Well, Brian, judges have always been human beings, and human beings are never free of their personal preferences and prejudices. I don’t doubt that the entire country, including the judiciary, has become more polarized in recent years, but I’m sure it was always there. Granted, the best judges are those who can put aside their personal feelings in making decisions, and I think most of them do it most of the time. It’s most difficult, of course, on the hardest issues.

    I’d guess the first warning probably came from Thomas Jefferson, and he was probably thinking of John Marshall.

    I had to look up Fancy Lawnmower because I wasn’t sure I wanted to win the prize. I was relieved to find that it’s just a good Texas beer, not some machine I was going to have to push around in the yard.

  6. Brian |

    It’s the one you had at the house a couple days ago.

  7. Tom |

    Hmmm. Can’t believe I didn’t remember the “Fancy Lawnmower” name. But it was definitely good.

  8. Harvey |


    With all due respect: “Go through the motions, raise the right questions, behave like gentlemen and gentleladies, accept defeat gracefully if no real disqualifying scandals surface, and save your strength for another day. In other words — relax, bend over, and enjoy it if you can.” is possibly the worst advice you can give to a member of Congress . . . besides the entire Republican party seems to be already taking that advice.

    Nothing is gained (except votes that are based on deception) by setting aside your passion for a good cause and I’d say defeating Sotomayor’s nomination is a hell of a good cause.

    When Obama all but promised to lead us down the path to socialism — no one obviously cared — and now he’s doing it.

    When Sotomayor said that she is a better judge than any white person because of her background and life experiences she said it from the heart — she meant it! If that’s not a textbook definition of racism, sexism and self-aggrandizement what is? That and many other things she has said are her promises to base her rulings not on a strict interpretation of the law or of the Constitution but on her background and life experiences and don’t forget her abounding compassion! Lets not give her the chance, like we did Obama, to keep her promises.

  9. Carla Axtman |

    ah yes…”the path to socialism…”

    Seriously…I wonder if people who bandy that word around in such a cavalier manner have any idea what it means. And that leads me to a casual dismissal of the rest of their points.


  10. Tom |

    Well, I don’t agree that we’re on a path to socialism, and I don’t think that’s what Obama intends. I agree with Carla that socialism is often not well understood, and it seems clear to me that we’re a very long way from anything resembling it.

    There’s a certain reality here that people don’t want to accept. Barack Obama is a liberal Democrat, and the majority of the country voted for him. The Democrats are the majority party in Congress, and the voters put them there. The way it works, folks, is the majority pretty much gets it their way. So it’s expected that Obama will nominate liberal judges that are to his liking and the Senate will confirm them. For those who don’t like the way things are going, there are opportunities every two years to change all or part of that equation.

    I don’t oppose the Sotomayor nomination. Unless something we don’t know now comes out, I’ll probably favor it. I don’t like the basis on which she was selected and some of the things she’s said, but I haven’t seen anything yet that indicates she’s not suitable to serve on the Supreme Court.

    And my advice to Republicans stands — they aren’t going to beat this one. So they should be honorable opponents, do their jobs, and accept the inevitable.

  11. Brian Bagent |

    Actually, Carla, some of us do understand what that means. And we dismiss socialists and socialism out of hand.

    How about this for a definition of socialism – a political philosophy that declares that “society” is more important than the individual and that the individual exists to serve society.

    In socialism, there is freedom – the Kafkaesque freedom to pace back and forth in one’s cage. In a just society, the norm is negative law which prohibits/punishes activities that quantifiably injure others. An unjust (socialist) society is replete with positive law which compels behavior and abrogates the right to associate with whom one wishes and the right to dispose of one’s labor as one wishes.

    When you get right down to it, there are only two forms of government: republics and oligarchies. Oligarchies may come in many different flavors, but they are all ultimately tyrannies.

    I have no more right to impose my will upon the entire world than the world does to impose its will upon me. The whole world certainly would have the power to do so, and in a socialist society, it is that power that is used against the individual to enforce conformity. That is repulsive.

  12. Anonymous |

    How about this for a definition of socialism – a political philosophy that declares that “society” is more important than the individual and that the individual exists to serve society.

    I would say that is a poor definition.

    Socialism (according to Random House Dictionary): a theory or system of social organization that advocates the vesting of the ownership and control of the means of production and distribution, of capital, land, etc., in the community as a whole.

    There are also degrees of socialism, just like there are degrees of capitalism. There are also multitudinal forms of government, the forms of which are listed at Wikipedia here.

    WADR, this is basic civics. It’s very tough to take someone seriously who won’t work with the basic understandings of governmental types and definitions.

  13. Carla Axtman |


    “Anonymous” was me–Carla. I thought I had my identification typed in, but I guess I goofed. Apologies.

  14. Tom |

    Carla, seems to me that Brian and Random House are saying pretty much the same thing. The key point, as you say, is there are degrees of every form of government and their economic and political arrangements.

    The mainstream American right and the mainstream American left debate pretty much on the margins of those definitions. I doubt that many liberals really want socialism in any true sense, any more than most conservatives yearn for a return to the unfettered free enterprise of the robber barons. Both sides, I think, would benefit from resisting the temptation to excessively demonize the other.

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