The American Spectator : The Spectacle Blog : Judging Sotomayor

Text Size

Judging Sotomayor

By W. James Antle, III on 5.28.09 @ 12:08PM

There's been pushback, even among some conservatives, against criticizing Sonia Sotomayor for her actions in Ricci and her "wise Latina" comments. In the former, it is argued that she merely followed the law. In the latter, she was merely saying that she was, like all of us, a product of her background and experience, which will necessarily have some impact on her views. Needless to say, I disagree.

First, let's understand that the main criticism of Sotomayor on Ricci has not focused on her application of Title VII. (Though originalism does not mean mindlessly upholding 50 years of judicial liberalism. The Warren Court, for example, was a long time ago -- a lot of what were once innovations are now precedents.) She has been criticized mainly for participating in an effort to deny the firefighters' claims the widest possible hearing. Why? Possibly because the case shows the routine effects of "disparate impact" diktats in an unfavorable light. One hopes it's a question she'll answer -- or even be asked -- during her confirmation hearings.

Second, few people object to Sotomayor invoking her biography as a Puerto Rican woman who came from a disadvantaged background in the Bronx to graduate from Ivy League schools and become a federal judge. To reduce her full Berkley remarks to an inoffensive paean to experience and the limits of impartiality strikes me less as a fair-minded reading than an exercise in wishful thinking. But in any event, her remarks should not be divorced from the context in which they were delivered: she was speaking to a multiculturalist audience as a represenative of a judicial liberalism inclined toward group rights. It is appropriate to use her nomination as an occasion to debate that conception of justice.

Moreover, the demographics of this country have reached the point where racialist and separatist statements by nonwhites who aspire to high office have to be held to the same standard as those of whites. That doesn't mean pretending that white men today have it as bad as blacks did under Jim Crow or whining about white victimhood. But it does mean that, as a matter of political norms, racial statements that would be inappropriate for a white man to make should be considered inappropriate for others to make.

We are confronted with an approach to judging that, while stopping well short of full-blown critical legal theory, sees itself as helping designated victim groups overcome designated oppressor groups. Obama's statements about the judiciary illustrate this more clearly than Sotomayor's. As bad as the prattling about "empathy" is, this is a very selective empathy. Empathy is merely a code word for judicial liberalism. And Sotomayor is clearly a judicial liberal.

One more thing: Nominees say things that will help them get confirmed. Just because you can find quotes where judicial liberals talk about upholding the law rather than legislating from the bench and judicial conservatives talk about their empathy for puppy dogs and how they never, ever thought about Roe v. Wade before doesn't mean we aren't talking about different judicial philosophies.

View all comments (21) | Leave a comment

Cameron| 5.28.09 @ 1:27PM

"Empathy is merely a code word for judicial liberalism."

Is that so? I had no idea Clarence Thomas and George H.W. Bush were such great bastions of judicial liberalism.

"I have followed this man's career for some time, he is a delightful and warm, intelligent person who has great EMPATHY and a wonderful sense of humor."
- President George H.W. Bush of Clarence Thomas, July 1991.

Murphy| 5.28.09 @ 1:39PM

I don't begrudge conservatives opposing Sotomayor on philosophic grounds. Except for some eyebrow-raising decisions that favored corporate entities, she is a very liberal judge.

I do think all the talk about her being a "bigot" and a "racist" (Beck and Limbaugh and Gingrich) is really a little silly. People LAUGH at you when you say these things. You should trust your philosophy enough to argue its merits, then see what happens.

I, for one, completely disagree with the system of thinking that led to the Ricci decision, which to me seems unfair. However, I think her reasoning was more narrowly construed than some on the right are acknowledging.

Let's face it. These criticisms are often the result of raw politics. The right tries to demolish a Democrat's candidate; the left tries to demolish a Republican's candidate.

This must stop. What happened to Thomas in the congressional hearings was a sham and a shame. Bork wasn't fairly treated either.

The Roberts hearings should be the model. By all means the opposition party should be allowed time to cringe and cry out, but "advice and consent" should not be construed as meaning the judiciary committee has veto power over the president in these appointments.

I say the Congress should look over the legal qualifications of a nominee, and if they're in good order, the nominee should be confirmed.

Sotomayor will, of course, be confirmed. The question is whether the Republicans want to spend a long hot summer beating up a hispanic woman who pulled herself out of the projects to attend the best universities in the country and got herself seated on the federal bench.

Rick V.| 5.28.09 @ 1:52PM

Cameron,
Perhaps President George H.W. Bush did not consider empathy a substitute for jurisprudence, as President Obeyme does.

Real American| 5.28.09 @ 2:40PM

when will liberals realize that corporations aren't conservative and just because a corporation wins a legal ruling, doesn't make it a conservative result. Conservatives care about the proper and faithful application of the rule of law and restraint by jurists not to overstep their place in our constitutional government. Who the winners and losers are isn't the foremost consideration, if it is one at all.

Oldefarte| 5.28.09 @ 2:41PM

The problem with Sotomayor's [and liberals in general] judgement in RICCI and other affirmative-action cases was that she/they partisanly rule in favor of one of the EQUAL parties involved. Since Brown vs. Bd. of Ed. [1954], there have essentially been NO inequality in our public school system. Minorities and non-minorities ALL attnd the SAME public schools, with the same teachers, the same computers, the same textbooks, the same classrooms,etc. The firefighters in Ricci were all public school attendees----black, white and Hispanic. Sotomayor says in Ricci that, since there were no blacks that scored high enough on the promotional exam, that no one should be promoted. The whites and Hispanic applicants did score high enough to merit promotion, but were denied because no blacks qualified. That's socialism or communism, folks. The whites and Hispanic all went to the same publics schools as the blacks, so why are they ADVANTAGED? The whites and Hispanic scored high enough because they studied and put in the extra work to prepare for the test, whereas the blacks did not; so why should the whites and Hispanics be denied promotion????????????

W. James Antle III| 5.28.09 @ 3:05PM

Cameron, I clearly said in the post that you can find examples of conservatives talking about empathy and liberals talking about not legislating from the bench. That doesn't mean they won't rule differently once on the Court. I'm also obviously not arguing that every single use of the word "empathy" is code for judicial liberalism. It's just the current president's preferred code word.

Spicy Joker| 5.28.09 @ 3:20PM

This talk about filibustering Sotomayor is just rhetoric calculated to reassure conservatives. The Repukelickans have already given the green light to certain Senators (e.g., John McPain) to vote for her. The Repukelicans would rather lose the Supreme Court than lose their seats in the Senate.

edward del colle| 5.28.09 @ 3:42PM

i would really like to hear from mr. antle whether this woman and the three judge panel was correct if they leaned on a "disparate inpact" precedent to dismiss there suit, and will the supremes yet reverse this judge again. rush pointed out that 3 of the four case reversals by the higher court resaoned her MISINTERPRETATION of the statutes involved.

JP| 5.28.09 @ 3:43PM

"Let's face it. These criticisms are often the result of raw politics. The right tries to demolish a Democrat's candidate; the left tries to demolish a Republican's candidate. .."

If I remember correctly, President Clinton not only got Ruth Baeder Ginsberg through the Senate with only 4 days of hearings, the final vote was 96-3. Justice Breyer was about the same. Yes, the GOP may have held up a few Appelate Court appointees, but the GOP Senate never even threatened a filibuster. Overall, President Clinton got pretty much all of his nominees through the Senate dominated by the GOP.

JD| 5.28.09 @ 3:58PM

Is this a quote from the "liberal" supreme court nominee Sonia Sotomayor?
"When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

And this quote. "I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. ... And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position."

It is a quote from that famous "liberal" jurist Antonin Scalia. Are right wing conservatives hypocrites? Yes they are.

Murphy| 5.28.09 @ 4:43PM

JP --

Fair enough. Republicans probably have shown more restraint, and as I say, I think the way Thomas was treated was disgraceful. Democrats deserve much blame in this. You are right too, however, that Republicans are holding up other kinds of appointments unnecessarily.

tonypal| 5.28.09 @ 4:53PM

JD:

Thanks for the broad brush. If I can play that game too, all liberal men are sissies because they want a nanny state to take care of them from cradle to grave. If that doesn't decribe you, then perhaps next time you'll think twice before stating that all right wing conservatives are either this or that.

I don't think the point is that a person is immune to his or her own ideas and cannot use personal experience to guide them. We are all nothing more than the sum of our experiences. In fact, he uses the words "take into account" in your first quote. I personally have no problem with that.

The problem we right wingers have is when that becomes the primary motivating factor in a judge's decision making process. It goes back to this whole concept of judicial activism and the idea that you have a pre-determined outcome in your mind, with the only challenge being to find some source from somewhere to support your view.

During the hearings for then nominee John Roberts, Senator Durbin, truly a dim bulb if there ever was one, was beside himself over the fact that Roberts actually had the temerity to apply the law and rule for a large corporation over an individual who sought redress against said corporation. Apparently, in the mind of Durbin, the outcome should have been determined long before Roberts even got to the facts of the case. All he need to do was look at the two parties to make his determination.

That's why we fear and reject Justices like Sotomayor, because their backgrounds don't just serve to inform their decisions, they are the bedrock upon which their decisions are reached. That is an entirely inappropriate approach to adjudicating a case.

Murphy| 5.28.09 @ 7:12PM

edward del colle

Rush's figures and interpretation are wrong.

Sotomayor was overturned 50% of the time. (When Alito was on the appeal's circuit, 100% of his cases were overturned.)

Let's keep this in perspective. Of the hundreds of cases that Sotomayor judged, only SIX were selected for review by the SC. Of those, three were overturned. That's actually a great record. (Alito's numbers are probably similar.)

Rush is counting on your ignorance about how the appeals system works.

Murphy| 5.28.09 @ 8:37PM

Correction: only FIVE were selected for review. Three were overturned. Thus, she was overturned 60% of the time, as the Washington Times reported. Still, this is no big deal.

Angel| 5.28.09 @ 9:59PM

Well, at least you admitted you were wrong, Jeremiah/Murphy. Course you had to--we would have nailed you if you hadn't. Who'd we Bork? Any answers, Murph/Jeremiah?

Murphy| 5.28.09 @ 10:18PM

Angel --

Yes, I was wrong. However, my correction actually strengthens my point. Out of nearly 400 decisions, five were selected for review over 11 years. By any measure, the issue of overturned decisions does not reflect poorly on Sotomayor.

Angel| 5.28.09 @ 11:39PM

She's a bigot. Admit it, troll.

gene| 5.29.09 @ 12:33AM

she is also a racist that is presicely why she will be confirmed

Murphy| 5.29.09 @ 12:30PM

Angel and Gene -
I'd love to see some evidence that she's a "bigot" and a "racist," and also, Gene, that the Senate is looking for a racist to confirm.
No evidence? Faith based commentary?
I'm not surprised.
You'll follow your Limbaugh Fuhrer to any absurdity. Thankfully, we live in a country where the majority of people reject his hatred and irrationality, and where people like you are just a tiny fraction of the electorate.

Basil Plumley| 5.29.09 @ 2:06PM

JD| 5.28.09 @ 3:58PM

It is a quote from that famous "liberal" jurist Antonin Scalia. Are right wing conservatives hypocrites? Yes they are.

Wrong and wrong. The quote is from Alito from his confirmation hearing. If you recall, the Dems were beating him up as an uncaring person with no regard for the little guy(I wonder how the Dems will defend Sotomayer's Ricci decision?) Perhaps, if you were intellectually honest you would have provided some context:

COBURN: You know, I think at times during these hearings you have been unfairly criticized or characterized as that you don't care about the less fortunate, you don't care about the little guy, you don't care about the weak or the innocent.

Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

Basil Plumley| 5.29.09 @ 2:31PM

Murphy| 5.29.09 @ 12:30PM

Murphy et al.
On top of being the board liar, you now are the village idiot. Only someone with very little on the ball could take Sotomayer's statement made in the Spring 2002 issue of Berkeley La Raza Law Journal, a symposium issue entitled "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation" as innocent as you.
You do realize that La Raza means The Race, don't you?
You could probably look it up in the same dictionary as the word "cretin". (concerning Crete and Cretans--I got to admit you are entertaining when you are trying to be serious)

If Alito and Scalia had made the same statement to the White Citizen Council you would be screaming bigotry and racism. Somehow, you see nothing wrong in this instance. That is not shocking or surprising.