Sunday, May 31, 2009

Judge Sonia Sotomayor

If you have been following the major news outlets this week (Fox News included), you know a few things about the judge President Obama has nominated for the Supreme Court:

  1. She is a She.
  2. She is Hispanic.
  3. Republicans had better watch out if they question anything about her.

Republicans have tripped over themselves saying they will not criticize her based on her sex or ethnic background. I believe there are a few good reasons to deny Judge Sotomayor the highest court in the land. Lady Justice is supposed to be blind. If my criticisms would be valid against a white Republican, then they are valid against Sonia Sotomayor.

Her previous decisions do raise some real question marks, specifically her decision in Ricci v. DeStefano. The city of New Haven, Connecticut uses an exam to qualify firefighters for promotions. This test is examined ahead of time to make sure it is "race neutral" and it is administered due to an agreement between the city and the union. Traditionally, firefighters who pass the examine are promoted. On one specific occasion, 16 white firefighters and one Hispanic firefighter passed the exam. They were not promoted because no black firefighters passed the test. The city decided they wouldn't promote anyone if there were no successful black applicants. The firefighters sued believing they had been the victims of racism. The lower court dismissed the case, and Judge Sotomayor heard it as an appeals judge and agreed with the lower court. In the coming weeks you will hear more about this case for three reasons: the appeal of the case is going to be decided by the Supreme Court in June; the decision, coupled with other comments by Sotomayor, does not pain a flattering picture of the Judge; and another Hispanic Judge, Jose Cabranes, wrote an opinion questioning Sotomayor's decision.

She has made some very questionable remarks, in public and on the record, regarding her judicial philosophy. This is important because her comments are fair game in confirmation hearings. She shouldn't be asked how she will decide on gay marriage, abortion, or school prayer, but she can be asked what she meant when she 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." President Obama and Secretary Gibbs have both tried to clarify these remarks.

Perhaps even more troubling are her remarks in 2005 stating that policy is made at the appeals court. Policy and law are not made in court. State and Federal Legislators make law, not judges. Judges interpret that law. They decide what is and what isn't out of bounds. They don't decide where that foul line is.

Republicans should challenge Judge Sotomayor on these points, and others that may come out over the next few weeks. Democrats and the Media would do well to look over these issues as well. Perhaps they should stop telling Republicans what is fair criticism, and look at Judge Sotomayor's record.


Brandon said...


As for your point on whether or not judges make policy and law, of course they do. In deciding cases where precedent does not exist or the question exists whether the precedent shall stand, they make policy and therefore law. Then it is up to Congress to decide if they like the decision or not and to make legislation to negate any policy that they feel is made in error.

If the courts weren't permitted to make policy, we might still be stuck with segregation. Instead, Brown started the ball rolling on various legislative acts that eliminated segregation and outlawed racial discrimination.

The problem is that partisans on both sides of the aisle quietly like judicial decisions that they favor and then scream about judicial activism when a decision is decided that they don't like.

Andy D said...

Actually you have a good point. Judges making policy also gave us Roe v Wade. But regardless, the Judicial branch isn't suppose to set policy or make law. That is the purview of the "people's body", the Legislative branch.

I don't like judicial activism. I like to see the constitution followed.

Andy D said...

Another comment about the court making policy, especially from a specific cultural background (as Judge Sotomayor encourages). This is from the American Spectator website today in an article by Jeffery Lord. The article is a response to Peggy Noonan's article asking for a grown up debate around Judge Sotomayor. The full piece is very good, but four pages long. I encourage everyone following Judge Sotomayor's confirmation to read it in it's entirety. I have quoted only a small portion because I felt it was directly relevant to this discussion:

Three cases specifically come to mind that raise red flags on a judge like Sotomayor who is seemingly so obsessed with race. The first, of course, would be the notorious Dred Scott v. Sandford case, in which a racist (and slave holding) Chief Justice Roger Taney used his "cultural experience" (as Sotomayor advocates) to, in the words of Judge Robert Bork, "read into the Constitution the legality of slavery forever."

Have you ever read that decision, Peggy? It's truly vile. Among the sentiments expressed by a man who was no less than Chief Justice of the United States Supreme Court was the idea that blacks were "so far inferior that they had no rights which the white man was bound to respect." This was exactly the thought being acted out by the white owner of that hotel when he fired my Dad and the black waitress. Maybe he knew about Dred Scott -- he was an educated man -- and maybe he didn't. But he certainly had every reason to believe that his actions were socially acceptable. Dred Scott is one piece -- one prominent piece -- in a cultural mosaic that told him so. By using race as the basis for this particular Supreme Court decision, Taney's presence on the Court helped launch the Civil War.
The rest can be read at the American Spectator.

I respect your opinion Brandon, and you are always very fair in your comments. I feel this is a very important debate that the country needs to have.

pack04 said...

Anonymous guy used this page in the Prager University post to show that conservatives were being contradictory by apposing Sotomayor for being racist when Alito a few years back said the same thing. I disagree that it is the same thing or contradictory. However the purpose for putting it is a different point. Alito said in the transcript "And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result." I agree with the way that it is put.
The court cannot make a law. They can rule if a law is constitutional or not. They can decide how to interrupt laws. That interruption becomes policy. The legislators have the ability to make policy law or to make a law against that policy. This is fundamental Constitutional separation of power and checks and balances.

the anonymous guy said...

A little reality check. A higher percentage of Americans support Sotomayor's nomination than supported *any* of George W. Bush's Supreme Court nominees.

That doesn't necessarily qualify her for the job. But it just shows how far out of the mainstream you guys are now... ...hyperventilating about her being in the equivalent of the "KKK," publicly wondering about her "menstrual cycles," and claiming that "a diverse bench must inevitably be a second-rate bench."

Is it finally sinking in that, no, we really didn't like George W. Bush as president? That the whole thing was a national nightmare? And that we are now recovering from it with a smart, fair, progressive, African American president?

I get that Andy isn't criticizing Sotomayor for her "race," per se, but it's interesting that the first two complaints he lodges have to do with "race." He'll blame that, I'm sure, on Sotomayor's "obsession" with race. But he never would have found those quotes without the help of the same people making the "KKK" accusations.

Andy D said...

This is perhaps the worse comment you have ever posted on my site. Not only do you comment on things that aren’t discussed in this post, you also manage to hint at calling me and a racist. You accuse me and others on this site of “…hyperventilating about her being in the equivalent of the KKK, publicly wondering about her ‘menstrual cycles’, and claiming that a, ‘a diverse bench must inevitably be a second-rate bench,” none of which we have done. Are you simply making up things that we said to argue them, or have you skipped the whole reading what we wrote part?

I have no objections to her race or sex. You have also not seen any complaints on this site as to her race or sex. Neither of those are valid concerns when deciding if a judge is to be seated on the Supreme Court or any other court. I do have some strong objections with Judge Sotomayor’s self proclaimed judicial philosophy and her professed belief that her ethnic background makes her a better judge than someone of another ethnic background.

Your comment that I am actually criticizing her race because my first two complaints have to deal with race seem to be a mischaracterization of my comments. They have to do with race, but they have to do with the Judge’s views on race, not my own.

Sometimes you have valid comments on here, and some of them seem to be well thought out. This comment was neither valid, nor thought out. My hope is that someone snuck into your house and accessed this site with your ID without your knowledge. Please don’t post an insulting comment like this again without thinking long and hard about it.

pack04 said...

How far out of the mainstream did you go to get those comments? I look daily at the big news websites and I have not seen stories in which they questioned her menstrual cycles etc.

You can't seriously think that there are not concerns about this judge. Are they big enough to keep her out? I don't know. That is the purpose of the confirmation hearings. It is sad when I hear senators say things like well we have enough votes so it does not matter what Republicans think or do. This is not a political thing. This is fairness, this is judicial. Yes I live in a fantasy world, but should my fantasy world not be the real world?

pack04 said...

Additionally, I am not sure if she is racist or not. This day in age it is very hard to tell what is and what is not, especially with a perceived double standard. I do, however, feel that President Obama might have been discriminatory.

discriminatory: characterized by or showing prejudicial treatment, esp. as an indication of racial, religious, or sexual bias

When Justice Souter announced his retirement people looked at the racial makeup of the Supreme Court and saw that a Latino was missing. It does not surprise me that President Obama picked a Latino to "fix" that. I would like to see and ask President Obama if he truly did look at all possible candidates or did he look for candidate that was Latino?

If the President looked for a Latino specifically then that does not affect her, nor should it affect the decision of the Senators. The President has the ability to nominate who he wishes. The Senators have the duty to concur or not with the nomination regardless of why that person was nominated.

If the President looked for a Latino specifically for political reasons, (get votes, keep from getting yelled at by minorities groups) rather than nominating the best person for the job then he has let down the American people and ruined the integrity of the Supreme Court.

I hope the President looked at all people for the Supreme Court and not one race of people. I don't know enough about him to believe one way or the other. He is a politician so I would lean the way of him picking for political reasons, but that is my general mistrust of all politicians.

Additionally, the Senators need to look into her as a judge and remove from their minds that she is a Latino. They would let the American people down yet again if they approve or deny her because she is liberal, was nominated by a democrat and they are/are not a democrat.

the anonymous guy said...

Thanks for the kind words, Andy.

I should have been clearer that those three specific examples were taken from your (right wing) team, not from postings on this blog. But let's see how far I had to go to get those comments:

Fox News Panelist and radio show panelist G. Gordon Liddy.("menstruation")

Former Republican Presidential candidate and Congressional Representative Tom Tancredo. ("KKK")

Jeffrey Rosen, The New Republic. ("intellectual mediocrity")

And that's a pretty deft argument you're making about "race." You say that you can critique somebody else's views about "race," but that doesn't have anything to do with your own views about "race" or have anything to do with your own "race."

Uhhh. Right.

It's funny how the whitest party in town is now trying to teach all the rest of us about "race."

saint said...

"Is it finally sinking in that, no, we really didn't like George W. Bush as president? That the whole thing was a national nightmare? And that we are now recovering from it with a smart, fair, progressive, African American president?"

Anon -
not sure what Bush has to do with this? I believe Obama is smart, and unfortunately, very progressive. Fair depends on if your on his side of the issue. But my real question is this: Why do you feel the need to cite his race? His race was not part of the article or argument. Nor is anyone aruging Sotomayor is hispanic and therefore should be turned down. The only question being aruged is whether she is racist or not.

If a white man were nomintated, and had been quoted as saying he would make better decisions than anyone else because he is a white man, not only would he not get the nomination, he would lose his current position, be shuned out of politics/law altogether, and probably would be sued by Al Sharpton or Jesse Jackson, but both would definately crucify him in the press. Why the double standard from the left?

Why does the left so strongly believe only white people are capable of racism?

the anonymous guy said...


I mentioned Obama's "race" b/c I think there are plenty of folks who are still incredulous (and seething) that there is an African-American family living in the White House with Daddy serving as POTUS.

And now there's going to be *another* dark skinned person in a serious position of power? It makes them go crazy.

I could be wrong about this. But it's the best explanation I can think of for all the race-obsession on the part of the right wing right now. If they're really anti-racist, what was their deal with supporting Jesse Helms and Strom Thurmond? How do you support those dudes and then go race-ballistic over this judge with an extensive and exemplary record?

I don't know anybody who believes that only "whites" are capable of racism. But, no, I don't spend a whole lot of time worrying about national-level Native American racist power structures oppressing the white male, because I know a little bit of history, and I've been around the block a few times. The same is true for me worrying about the threat posed by "Latina woman racists" [that's Pat Buchanan's redundant insult] who have shown a lifetime of commitment to equal rights for all people.

saint said...


I don't know anyone who has a problem with the color of the president. However, I too have been around the block, and I don't doubt that there are people that don't like it, people who wouldn't like Sotomayor based on her race, and people who didn't like C. Rice because of her skin. I also believe that there are people who would not have been happy if another white man had won election instead of Obama. All of these people are the same, and none of them are worth debate.

With that said, don't you agree that if a white male candidate had said the same thing that Sotomayer said, the left would be jumping all over it?

I also think assuming the right wants to get rid of Sotomayer because the president is not white is a pretty far stretch.

I just thought of a question for you. Of all the senators, how many are ethinc, and are they republican or democrat? Same thing for the House? I don't know the answer, and am curious.

the anonymous guy said...

I do agree with you this far: the "left" is generally more worried about high-level abuse of white male privilege than high-level abuse of hispanic female privilege. For the same sorts of reasons that most of us aren't too worried about high-level Amish corruption on Wall Street.

Your question about Congress, "how many are ethnic?" ...The answer is "all of them." But I think by that you mean people with an apparently different ethnic background from 43 out of the first 44 men who have been President of the United States.


41 African American members. All are Democrats.

28 Hispanic or Latino members. 22 are Democrats. 3 are Republican.

9 Asian Pacific Americans. 7 are Democrats, 2 are Republicans.

1 Native American member. He is Republican.


1 African American Senator, a Democrat.

3 Hispanic or Latino Senators. 2 Democrats and 1 Republican.

2 Asian Pacific Americans, both Democrats.

When I see these numbers, I recognize 1) ethnic minorities are under-represented and "white" people are over-represented in Congress as a whole and 2) the Republican members of Congress are really, really pale.

The Republican Party is overwhelmingly "white." Did you know 98% of Ronald Reagan's votes in 1980 were from "white" people? I can tell you the Dems aren't perfect, but our gatherings look like the America I believe in.

Andy D said...


I have waited to respond to you because I wanted to see if you would ever address the issue of Judge Sotomayor's statements. Sadly, it seems you are content to accuse Republicans of racism without actually addressing the concerns I brought up about Judge Sotomayor. Should I assume that you think her comments are entirely appropriate. Is it fair to say that if a Republican had said the same thing, you would support them?

You accuse Republicans of being racist while hinting that no such racism exists in the Democratic Party. Let's be brutally honest here. Anytime you have a collection of people as big as a political party, there will be racists in it. You seem to be good at looking up information on sitting Senators and Congressmen, tell me a little about the distinguished Senator from West Virginia. Can we stop with the stone throwing when the DNC has a KKK member in its ranks sitting in the Senate?

You have accuse Republicans of hating Obama because of his race. I am very active in politics and the political discussion in the South. I am a card carrying member of my local Republican party. I have never once heard a friend, a fellow Republican, or a stranger on the street complain about President and CEO Obama because of his skin color. We find plenty wrong with his ideas, his words, and his methods without even addressing his race.

I am challenging the Sotomayor nomination based on issues. You can continue to name call, or you can try to address the issues. You are found of asking me to be part of the solution. I ask you to do the same. I really don't care about Sotomayor's ethnic background. I am concerned about her judicial philosophy and her public statements. Aren't those the exact reasons we should debate any judicial nominee?

the anonymous guy said...

Andy, this is getting boring.

When someone from an ethnic minority immigrant family says that their ethnicity gives them some special insight, I'm glad for it. When someone from the majority culture with a history of ethnic abuse of power says their "race" gives them some special insight, I worry.

There are racists in the Democratic party. Too many of them. And, yes, West Virginia Senator Robert Byrd was in the KKK into the early 1950's. I wish that would have disqualified him in the minds of voters, but West Virginia is a backwards Democratic state, with "white" ethnic views more like Mississippi and Alabama. I'm not proud of it. Notice that last year was the first time since 1916 that WV didn't help elect a Democratic President. Hmmm, what was different about our candidate last year? There are a lot of racists in the Democratic Party in WV. But notice that they voted Republican when the black guy was up for a vote. You can have the racists.

As for not hearing any racial remarks about Obama, how about your Georgia congressman calling Obama "uppity," the Atlanta bar owner who printed T-shirts with Obama as a monkey, the buttons worn at the Texas Republican Party that said "If Obama is President, will we still call it the White House?", the Republican California Mayor who sent out the card with a picture of watermelons all over the grounds of the Obama WH, Rush Limbaugh playing his "Barack the Magic Negro" song...

Funny you've never heard of any of that.

RE: Sotomayor, I'm just pointing out the coincidence that the "issues" you care about in her "judicial philosophy" have to do with...



Andy D said...

It boils down to this: Are you ok with a Judge on the Supreme court who says their skin color and their gender make them a better judge?

Would you support a Bush nominee who said the same things?

I think this is an excellent teaching moment. You and I can both cite instances of racism and racist in the other party (as a side note, the one I am familiar with -- the Limbaugh comment-- is not his, but a newspaper reporter's). If we agree there are bad apples in both parties, then let's forget the politics of this nominee and look at the nominee.

My complaint is not that she is hispanic. My complaint is that she believes she is a better judge and reaches better decisions based only on her race and gender. I don't know if Sotomayor is a racist, I have never met her. However, those are racist remarks.

You may be more comfortable with a Judge from the minority who makes these remarks, but if you support her, you have to support a white judge or a male judge who says the same thing. I wouldn't, and I don't believe you would either. Forget the politics of this judge and forget what President nominated her. Simply look at her statements and ask if they would be acceptable coming from a Republican.

the anonymous guy said...

OMG. You give Limbaugh a pass b/c he only *repeats* and *amps up* racial language about Obama. That's sick. So if I hear racist stuff about Michael Steele, it's ok for me to set it to music and broadcast it approvingly to millions of people, as long as somebody else said it first? Get a spine, Andy.

As for Sotomayor's comments, if a "white" Jewish guy, or a "white" Polish or Irish guy made the same remark, I might find it clumsy (as I do for Sotomayor) but I understand the point and think the principle is basically sound: people who have lived through difficulties and discrimination in life have a wisdom that many privileged people do not have.

John McCain gained some of that wisdom. So did Barack Obama, and Dwight Eisenhower. And I'll be very glad for Judge Sotomayor to bring such wisdom to the Supreme Court.

Sotomayor's speech (delivered as part of a symposium entitled "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation") makes clear that she is interested in a *diversity* of perspectives on the bench, and that she is committed for equality and justice for all. But you can imagine that some people who have been holding more than their fair share of privilege may find that idea quite frightening.

Andy D said...

That's what I love about you. You criticize without actually trying to find out what something was about. Rush Limbaugh didn't do that song to criticize anything about Obama. The song was made to criticize the Democratic Party and the media.

Many people who have lived through different circumstances see things differently. The problem is we are talking about the Law. Lady Justice is suppose to be blind. She shouldn't care if the prosecutor, the accused, or the judge is white, black, male or female. All justice should care about is what the law states and the actions of the party before here.

I have never been privileged due to my race. The fact that you would encourage these kinds of remarks is appalling. You are encouraging racial and sexist remarks, and you are ignoring the whole intent of the Supreme Court. You cloak these terrible ideas in "diversity". It is wrong to promote or celebrate anyone simply because of their race or gender.

Andy D said...

Shelby Steele has a good piece today discussing this issue in the Wall Street Journal. Take a look at it and see what you think.

the anonymous guy said...

Andy, I find that article breath-takingly stupid. Sometimes Shelby Steele has some helpful insights, but this article actively tries to make us dumber.

Steele essentially puts people of color into two rigid categories (that are determined authoritatively by their relationship with "white" people). That's oversimplified and insulting.

But at least I got a good laugh out of it too, from the last line:

Mr. Steele is the author, most recently, of "A Bound Man: Why We Are Excited About Obama and Why He Can't Win" (Free Press, 2007).

LOL. Not only did Obama win decisively, but only three post-WWII presidents have had higher approval ratings at this point in their term: Dwight Eisenhower, John Kennedy, and Ronald Reagan. Looks like it's *Steele* who can't win.

Steele's arguments in the article are--astonishingly--the same basic ones as those in his (now hilariously titled) book.