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The Sotomayor Pick:

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. Stuart Taylor's comments on Sotomayor's speech are telling:

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life" — and had proceeded to speak of "inherent physiological or cultural differences."

Of course it is inevitable that personal background will influence judicial decisionmaking to some degree. Sotomayor is right to imply that it often had a negative effect on the decisions of white male judges in the past. But there is a difference between recognizing an inevitable source of bias while striving to constrain it and actually embracing it. I much prefer a jurist who strives to get beyond his or her ethnicity in making decisions than one who rejects the view 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" and instead believes that we should embrace the fact that "our gender and national origins may and will make a difference in our judging."

On the plus side, Sotomayor does meet the minimal professional qualifications for nomination to the Supreme Court. Her ten years of solid service on the Second Circuit Court of Appeals ensures that. At the same time, her record is far less impressive than that of most other recent nominees, such as Roberts, Alito, Breyer, and Ginsburg. Each of these was a far more prominent and better-respected jurist than Sotomayor, and Breyer and Ginsburg were leaders in the development of their respective fields of law. Sotomayor also seems far less impressive than Diane Wood and Elena Kagan, reputedly her top rivals for this nomination. The current nominee's qualifications are likely better than Harriet Miers' were; but Miers' nomination failed in large part because of her relatively weak resume. Among the current justices, probably only David Souter and Clarence Thomas had professional qualifications similar to or worse than Sotomayor's. That said, Supreme Court appointments are almost never purely merit based. Sotomayor joins a long line of nominees who were chosen in part because of political, ethnic, or gender considerations. It would probably be wrong to oppose her on that ground alone.

Finally, this may be a good time to remind readers that I have long argued that judicial philosophy and ideology are legitimate considerations for senators to take account of in deciding whether or not to oppose a Supreme Court nominee. Unlike some on the right, I took that view during the Bush Administration, and I hold the same position today. On that point, I agree with Barack Obama, who opposed John Roberts' nomination based on his judicial philosophy despite conceding that "[t]here is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge." Obama was, in my view, wrong in his specific objections to Roberts, but absolutely right in concluding that judicial philosophy should be considered in addition to professional qualifications when assessing judicial nominees.

UPDATE: Some commenters understandably question whether Sotomayor's credentials are really worse than Alito's were. Both of them spent comparable amounts of time as judges on a circuit court, and both had similar educational credentials at elite institutions. In addition, this post by Eric Posner (relying on methodology developed in this article by Stephen Choi and Mitu Gulati), shows that Alito's opinions and Sotomayor's have similar citation counts.

Nonetheless, I think that Alito's record is on the whole better than Sotomayor's was. In their composite ranking of federal circuit court judges (incorporating measures of quantity of output, quality, and "independence"), Choi and Gulati ranked Alito 16th out of 98 judges included in the study. Sotomayor was not included for technical reasons, but Eric reports that she would have ranked in "the bottom half." Eric cites data showing that Sotomayor's opinions are cited slightly more frequently than Alito's in court decisions and law reviews. But that difference is almost surely due to the fact that Second Circuit opinions are generally cited more frequently than Third Circuit ones (in large part because the Second Circuit includes New York City, which is the nation's most important center for commercial litigation and many types of white collar criminal litigation). I also base my view in part on a qualitative judgement. For years prior to his appointment, I often heard legal scholars and other experts describe Alito as one of the top conservative circuit court judges. Prior to her appointment, I rarely if ever heard Sotomayor described as one of the top liberal ones.

I may have been wrong in suggesting that Alito's preappointment record was "far" more impressive than Sotomayor's. But I still do think that he had a significant edge. That said, I reiterate my view that Sotomayor's credentials are good enough that she should not be rejected on qualifications grounds. The real objection to her is based on judicial philosophy.

UPDATE #2: It should be noted that Sotomayor put "I would hope that" immediately prior to her statement that a "wise Latina" judge would generally make better decisions than a white male one. I don't think that the "I would hope" materially changes anything in a context where it's pretty clear that she thinks that the hope is justified. After all, the statement comes in a paragraph criticizing Justice Sandra Day O'Connor's reputed view that "a wise old man and wise old woman will reach the same conclusion in deciding cases." Sotomayor's comment would not be a meaningful criticism of O'Connor's unless Sotomayor thought that the wise Latina judge really was likely to do better than a white male "more often than not."

UPDATE #3: In a more recent post (published several days after this one), Eric Posner presents new data showing that Sotomayor's recent record stacks up well against Alito's by various quantitative measures. I won't go into the details here, but on balance I think that Eric's conclusion is correct. Therefore, it can no longer be said that the quantitative data show that Alito had a "substantial edge" over Sotomayor. As I stated in the original post, my reservations about Sotomayor are primarily focused on her judicial philosophy and decisions rather than on competence. Even so, it's important to recognize that new evidence reveals that my original judgment that her record was less impressive than Alito's was probably wrong.

Terrivus:
Serious question: I assume she's Catholic, being Hispanic and having attended a Catholic high school. (Correct me if she's not.)

When Alito was nominated, there were articles critical that there "too many" Catholics on the Court. Will we see those same articles again, with renewed vigor?

Or does it all magically disappear because she's female, Hispanic, and liberal?
5.26.2009 10:12am
Eric Rasmusen (mail) (www):
If we're going to have a liberaljustice who rejects the constitution, less talent is better than more. On the other hand, someone with less talent is likely to be more modest, and thus to use milder rhetoric and less clearly wrong reasoning (because less clear, not because less wrong), which will help keep the public in its peaceful slumber.
5.26.2009 10:14am
Anderson (mail):
I'm a little surprised that Obama's going for the fight; Wood or Kagan would probably be easy by comparison.
5.26.2009 10:14am
sbron:
The simple problem is that she is a racist as evidenced by the wise latina quote and her actions on the Ricci case. The election of Obama, and the continued drift of the political center of gravity to racial Marxism is a direct consequence of our mass immigration policy that has radically changed the electorate. (I realize Sotomayor is Puerto Rcian, but Obama basically won because of the first and second generation immigrant vote.) We are simply exchanging the past white supremacy for an equally odious supremacy of color.
5.26.2009 10:17am
DEM (mail):

If we're going to have a liberaljustice who rejects the constitution, less talent is better than more. On the other hand, someone with less talent is likely to be more modest, and thus to use milder rhetoric and less clearly wrong reasoning (because less clear, not because less wrong), which will help keep the public in its peaceful slumber.


This assumes that the person in question is cognizant of his/her relative limitations. I have seen nothing to make me think that Sotomayor fits that bill. And of course, some of the most intellectually medicore justices in history have been anything but modest. See Blackmun, Harry.
5.26.2009 10:19am
Terrivus:
I'm a little surprised that Obama's going for the fight; Wood or Kagan would probably be easy by comparison.

What's the fight? This was the safe pick: she's Hispanic, has a good life story, and hasn't written that many controversial opinions.

Wood and Kagan were safe picks as well, though Wood a little less so. The "fight" picks would have been a governor (Granholm?!) or an academic (Kathleen Sullivan). Sotomayor is a political pick designed to appeal to an interest group. No fight there.
5.26.2009 10:19am
jackson:
She saved baseball. Isn't that enough?
5.26.2009 10:19am
Joe T Guest:
It's good to see that Obama is preserving the character of the seat, by nominating a mediocrity to replace another mediocrity.
5.26.2009 10:20am
Anderson (mail):
Or does it all magically disappear because she's female, Hispanic, and liberal?

Emphasis on "liberal," I think; she's not one of those bad Roe-overruling Catholics, I suppose, which I am guessing was the subtext behind that issue in Alito's case. I doubt it was actual anti-Catholic prejudice per se.
5.26.2009 10:21am
paul lukasiak (mail):
At the same time, her record is far less impressive than that of most other recent nominees, such as Roberts, Alito, Breyer, and Ginsburg.
_
Roberts? The guy had two years on the bench -- and never presided over a trial, never tried a case before a jury, and basically was a corporate legal hack who made a few forays into being a GOP legal hack.
_
Just because you agree with Roberts, doesn't make him an "impressive" jurist.
_
and as for your main point, as Sotomayor points out in her speech, it was white men whose court decisions consistently reinforced constitutional racism and sexism for more than a century and a half. Getting people with perspectives other than white males (or those who carry their water, like Thomas) is essential when dealing with questions of minority rights, and Sotomayor is correct that her perspective is a lot more valid than that of people like Roberts and Scalia.
5.26.2009 10:22am
DEM (mail):

What's the fight? This was the safe pick: she's Hispanic, has a good life story, and hasn't written that many controversial opinions.


Probably correct, but isn't one attack that she purposefully avoided doing her job -- i.e., writing opinions -- in at least one major race case (the Hartford fire department case) precisely to avoid going on record on a controversial topic? It's one thing to avoid writing law review articles, quite another to affirm summary judgment in a major case without bothering to explain your reasoning.
5.26.2009 10:23am
unknownnamedagent (mail):
Your use of the term "likely" in the clip below borders on the comical. (Was it meant to be comical?)

"The current nominee's qualifications are likely better than Harriet Miers' were ..."
5.26.2009 10:23am
Pft:
As a law professor with a keen appreciation for nuance and the importance of words, you should be embarrassed for posting that "notorious" quote so blatantly out of context.
5.26.2009 10:23am
Terrivus:
Roberts? The guy had two years on the bench -- and never presided over a trial, never tried a case before a jury, and basically was a corporate legal hack who made a few forays into being a GOP legal hack.

"In my view . . . there is no better appellate advocate than John Roberts." -- Walter E. Dellinger III, solicitor general under President Bill Clinton, to the Senate Judiciary Committee.

What a hack!
5.26.2009 10:25am
Bad (mail) (www):
"Of course it is inevitable that personal background will influence judicial decisionmaking to some degree."

As an example, I await the ruling on the strip searching kids for headache meds case, in which I think gender and age unavoidably play a role in determining what is or isn't over-the-top invasive. The fact is, there are a lot of cases in which judgment calls on what is or isn't "reasonable" or even "rational" simply isn't something that can be codified, and yet many cases seem to come down to interpreting those standards in new, never envisioned situations. No constitutional philosophy, no matter how strict, can really avoid that aspect. I wouldn't call it a matter of bias: I don't think Souter, for instance, was "biased," exactly, in thinking it was a fine and funny thing to stick things in people's underwear and thus relevant to whether the government could rummage around in there without parental consent (let alone conduct body cavity searches). It's a just judgment call, one based on personal understanding, and pretending that even conservative justices don't make them is simply unwarranted. Different cultural perspectives are thus unavoidably legitimate aspects of jurisprudence, especially on the highest court.

That said, you're dead on about the idea that we need Justices who seek to overcome and think beyond these things rather than openly embrace them. Sotomayor needs to face some very harsh questioning on that score.
5.26.2009 10:26am
Terrivus:
Joe T Guest wins the prize for best line of the day.
5.26.2009 10:26am
Grumpy Old Man (mail) (www):
Another Ivy Leaguer with judicial experience.

Did she ever try a case?

I'd like to see some affirmative action for the trial bar and Flyover Country. You know, where those bitter crackers cling to God and their guns.
5.26.2009 10:29am
areader (mail):

But there is a difference between recognizing an inevitable source of bias while striving to constrain it and actually embracing it. I much prefer a jurist who strives to get beyond his or her ethnicity in making decisions


Oh, you mean someone who has empathy for those not like them? Good call.
5.26.2009 10:29am
Anderson (mail):
What's the fight?

I'll be happy to be wrong, but it seems that the GOP has been setting up an argument that Sotomayor is "too liberal," in addition to being not very smart or nice.

That will be all over Fox News, I'm sure.
5.26.2009 10:30am
paul lukasiak (mail):
"In my view . . . there is no better appellate advocate than John Roberts." -- Walter E. Dellinger III, solicitor general under President Bill Clinton, to the Senate Judiciary Committee.

What a hack!


Not sure what your point is. "no better appellate advocate" is the definition of a legal hack -- someone who you want representing you because he lacks principles and can get the job done for you.

I didn't say Roberts wasn't a good lawyer -- but the idea that his resume was impressive (and Sotomayor's 17 year tenure on the Federal bench is not impressive) is offensive.
5.26.2009 10:31am
AF:
At the same time, her record is far less impressive than that of most other recent nominees, such as Roberts, Alito, Breyer, and Ginsburg.

Can someone explain how Sotomayor's record is less impressive than Alito's, let alone "far less impressive"?
5.26.2009 10:32am
Thales (mail) (www):
"The simple problem is that she is a racist as evidenced by the wise latina quote and her actions on the Ricci case. The election of Obama, and the continued drift of the political center of gravity to racial Marxism is a direct consequence of our mass immigration policy that has radically changed the electorate. (I realize Sotomayor is Puerto Rcian, but Obama basically won because of the first and second generation immigrant vote.) We are simply exchanging the past white supremacy for an equally odious supremacy of color."

Impressive--the tin-foil hats go on only four comments in. I don't know what "racial Marxism" really means, but to take seriously the compound concept the name suggests, if you really think this country resembles that, you are seriously in danger of having your essence sapped by the fluoride in your water. Our (sadly deluded) immigration policy toward Latin America is largely to close the door, so I'm not sure what you are suggesting regarding demographics. Incidentally, Hispanics are much more likely to be social conservatives and practice what your crowd might refer to as family values than the white Americans you presumably favor (while calling a federal judge a racist without a hint of irony).
5.26.2009 10:33am
Soronel Haetir (mail):
paul lukasiak,

The problem I see with your argument against the old white guys is that the constitution as a document did not purport to guard against the complained of harms. Now, if something like the Equal Rights amendment had actually been ratified and judges ignored it I think you would have a vlid complaint.

Even under current statutory law I believe Congress has exceeded the granted powers in fighting racism, no matter how worthy the goal, but the courts have disagreed. <shrug>
5.26.2009 10:34am
Rock Chocklett:
I'm interested to see if criticism of the "wise Latina woman" comment makes it from the blogosphere and talk radio to the Senate.
5.26.2009 10:35am
Recovering Law Grad:
AF:

Agreed. Makes no sense, except to the extent that it spreads the smear that Sotomayor isn't smart, which is what we will hear from Fox and the rest of the loons.
5.26.2009 10:35am
catchy:
"Worse, it implies that she believes that it is legitimate for judges to base decisions in part based on their ethnic or racial origins."

Whereas you describe it as "an inevitable source of bias".

But there's nothing 'inevitable' about different backgrounds leading to 'bias'. On the contrary, different ethnic/racial/gender backgrounds can lead to different *objective experiences* that can legitimately be drawn on when making a ruling.

E.g., Ginsburg had a reasonable point re: the 13 yr. old girl strip search case, SAFFORD UNIFIED SCHOOL DISTRICT #1, ET AL., v. APRIL REDDING, that the males on the bench weren't particularly attuned to the 'reasonableness' of compelling a 13 yr. old girl to partially remove her undergarments. Here's Breyer drawing off his own background during oral:

Breyer: "In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay?"

Clearly these experiences informed his sense of a 'reasonable search'. Meanwhile, another woman on the court might not have made so light of a 13 yr. old girl having to pull aside her panties in front of school officials.

Such differences in background are not necessarily 'bias' -- they're just a different set of experiences that could and in many cases should inform a ruling.
5.26.2009 10:35am
monboddo (mail):
Grumpy--Courtesy of Wikipedia:

Sotomayor then served as an Assistant District Attorney under prominent New York County District Attorney Robert Morgenthau, prosecuting robberies, assaults, murders, police brutality, and child pornography cases.

And she was a district court judge for several years before being appointed to the 2d Circuit.
5.26.2009 10:36am
catchy:
Bad -- Great minds and all that.
5.26.2009 10:39am
first history:
Grumpy Old Man;

Another Ivy Leaguer with judicial experience.

Did she ever try a case?


She was an assistant DA in New York and prosecuted robberies, assaults, murders, police brutality, and child pornography cases.
5.26.2009 10:40am
Ilya Somin:
But there's nothing 'inevitable' about different backgrounds leading to 'bias'. On the contrary, different ethnic/racial/gender backgrounds can lead to different *objective experiences* that can legitimately be drawn on when making a ruling.

E.g., Ginsburg had a reasonable point re: the 13 yr. old girl strip search case, SAFFORD UNIFIED SCHOOL DISTRICT #1, ET AL., v. APRIL REDDING, that the males on the bench weren't particularly attuned to the 'reasonableness' of compelling a 13 yr. old girl to partially remove her undergarments. Here's Breyer drawing off his own background during oral:

Breyer: "In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay?"

Clearly these experiences informed his sense of a 'reasonable search'. Meanwhile, another woman on the court might not have made so light of a 13 yr. old girl having to pull aside her panties in front of school officials.


There's a difference between deciding based on personal experience and deciding based on racial identity. Even the former, however, is deeply problematic given that judges are required to decided based on the facts and applicable law of the particular case before them. Both Breyer and Ginsburg were on dubious ground in deciding a case on the (unsupported) belief that other people would view the experience of strip-searching the same way as they did.
5.26.2009 10:40am
Terrivus:
I'll be happy to be wrong, but it seems that the GOP has been setting up an argument that Sotomayor is "too liberal," in addition to being not very smart or nice.

The "not very smart or nice" argument was set up by that noted right-wing extremist Jeff Rosen. He's kind of right, but today's GOP is too dumb to know how to use that effectively; they will just make it seem like race-baiting.

And of course the GOP will play the "too liberal" card; the only difference is that it won't really stick, at least not compared to a Kathleen Sullivan or someone who was really out there. (And again, today's GOP is too thick-headed to know how to make this argument without simply sounding obstructionist.)

I mean, the GOP will have of the usual sound bites, but they won't go that far with this nominee, as compared to some of the other possibilities.
5.26.2009 10:40am
Bad (mail) (www):
"Can someone explain how Sotomayor's record is less impressive than Alito's, let alone "far less impressive"?"

To be fair: if you have a particular view of how judges should operate, then spending a few years doing the "right" things counts more than lots and lots of years doing the "wrong" things, even if both count equally per year as "experience."
5.26.2009 10:40am
Ilya Somin:
As a law professor with a keen appreciation for nuance and the importance of words, you should be embarrassed for posting that "notorious" quote so blatantly out of context.

The quote is very much in context, and I linked to the full text of the speech. Nothing in that text refutes my conclusion that Sotomayor thinks that racial and ethnic identity are legitimate factors in judicial decisionmaking. To the contrary, she actively embraces that view.
5.26.2009 10:42am
Jay:
paul lukasiak--
I'm not sure if you're trolling or mean to be taken seriously, but just to clarify, your basic position is: anyone who has been successful as a lawyer in private practice is thereby a hack and unqualified to sit on the bench? Therefore, acceptable judicial nominations are limited to law professors and those who have spent their careers at the NAACP Legal Defense Fund, et al?
5.26.2009 10:43am
jj08 (mail):
Already we are seeing some of Sotomayor's defenders playing the race and ethnic cards, a sure sign that they realize that she is a dim bulb who needs protection from her own bigoted statements.
5.26.2009 10:43am
scattergood:
What was the makeup of the SCOTUS when they decided Roe v. Wade, Brown v. Board of Ed? How many white males voted for these landmark liberal cases?

There is a reason that the woman holding the scales has a blindfold. Our legal tradition, in theory is equality before the law. It has morphed into equality of result, which is tragic for it is an incredibly dehumanizing meme.

Sotomayor should be skewered for her rejection of equality before the law. Period.
5.26.2009 10:43am
Ilya Somin:
Roberts? The guy had two years on the bench -- and never presided over a trial, never tried a case before a jury, and basically was a corporate legal hack who made a few forays into being a GOP legal hack.
_
Just because you agree with Roberts, doesn't make him an "impressive" jurist.


A truly ridiculous claim. Roberts was a DC Circuit judge for several years and also widely considered the top Supreme Court litigator of his generation. And, by the way, I disagree with him about many legal issues.
5.26.2009 10:44am
Anderson (mail):
but today's GOP is too dumb to know how to use that effectively; they will just make it seem like race-baiting

Race-baiting is ineffective? Who knew!
5.26.2009 10:46am
Bad (mail) (www):
"Even the former, however, is deeply problematic given that judges are required to decided based on the facts and applicable law of the particular case before them."

Case law can definitely help settle the question of what is or isn't reasonable in a particular context by precedent alone (what has been considered reasonable in the past). But the original interpretation of reasonable is ultimately not resolvable that way, and it doesn't really answer the question of what to go on in novel situations never envisioned by anyone writing the original law, and leaving the language open with broad terms like "reasonable" and so on.
5.26.2009 10:47am
paul lukasiak (mail):
The problem I see with your argument against the old white guys is that the constitution as a document did not purport to guard against the complained of harms. Now, if something like the Equal Rights amendment had actually been ratified and judges ignored it I think you would have a vlid complaint.
_
ultimately, your argument seems to be that because the constitution was written by a bunch of rich white males who considered women unworthy of the vote and didn't think that slavery was a deal-breaker, that the constitution should be forever interpreted from a perspective that advantages rich white men over all others. (Indeed, one can take that philosophy as far as Scalia, Thomas, etc. did in Bush v Gore, which managed to interpret even the 14th amendment to the advantage of the candidate who represented the interests of rich white males.)
_
And while I think that there is a decent legal argument to be made in support of that perspective, it represents a complete lack of the kind of ethical/moral perspective that was the foundation of the nation and its Constitution.
5.26.2009 10:48am
rosetta's stones:

"I don't know what "racial Marxism" really means..."


It may mean "From each according to their skin pigmentation, to each according to their skin pigmentation."

I have little opinion on the judge, and she'll likely pick up 51 votes and be approved easily. The only real wild card would be played if she's in any way associated with those Puerto Rican bombers, who camped out in her neck of the woods as I recall. But that would have come out by now, no doubt.

Nobody's really torn down her credentials, so she's in.
5.26.2009 10:50am
Oren:

It's good to see that Obama is preserving the character of the seat, by nominating a mediocrity to replace another mediocrity.

If Souter and Cardozo (by his own admission, not just a mediocrity but a plodding mediocrity) are anything to judge by, mediocrity is just fine by me.
5.26.2009 10:51am
Recovering Law Grad:
Ilya -

Roberts was not on the DC Circuit for "several" years. He was on for only a little over two years.
5.26.2009 10:53am
Cato The Elder (mail):
This confirms in my eyes, something I should have understood from the beginning: not only is Obama not a pragmatic leftist, he is a dangerous one.
5.26.2009 10:53am
Fred Beloit (mail):
She calls herself a Latina with a background that is "richer" than any white man's. This is very good news. Having a good grounding in the classical but now dead Latin language must be a valuable asset for a high justice. And her caring about the disadvantages of being a white man, and therefore ineligible for the Supreme Court under Obama, is also encouraging.
5.26.2009 10:53am
AF:
A truly ridiculous claim. Roberts was a DC Circuit judge for several years and also widely considered the top Supreme Court litigator of his generation.

But Alito was not seen as the top anything. Like Sotomayor, he was seen as a solid but unspectacular circuit judge.
5.26.2009 10:56am
catchy:
"There's a difference between deciding based on personal experience and deciding based on racial identity."

Of course, but there's also an overlap in some cases, as e.g. when your race or gender partially shapes your personal experience. That's all Sotomayor was saying in the speech you quote. There was nothing in there about the inherent superiority of Latino or female judges, pace Stuart Taylor. Just that there are different experiences that should be brought to the table.

E.g. in that speech she also said: "I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies, and prejudices are appropriate."

Sounds exactly right to me.

"Both Breyer and Ginsburg were on dubious ground in deciding a case on the (unsupported) belief that other people would view the experience of strip-searching the same way as they did."

And your alternative to drawing at least partially on personal experience is? Take a poll? Defer to whatever the defendant found reasonable?

Sorry, but obviously this is exactly the kind of issue where personal experience informs one's conception of what's 'reasonable', and where it'd be nice, ceteris paribus, if different backgrounds shaped SCOTUS's sensibilities.
5.26.2009 10:57am
M N Ralph:

Finally, this may be a good time to remind readers that I have long argued that judicial philosophy and ideology are legitimate considerations for senators to take account of in deciding whether or not to oppose a Supreme Court nominee.


Couldn't agree with you more on this point. In fact, I think judicial philosophy and ideology are not just a legitimate considerations, but the most important considerations. If Republicans oppose Sotomayor on these grounds, I won't begrudge them (even though for those who previously took a different position, I may cite them as examples of Kerr's Law).
5.26.2009 10:57am
DangerMouse:
Lovely. A racist lib who, instead of being a blind justice, decides cases based on what race you are.
5.26.2009 10:59am
MAM:
Somin states:

"That said, Supreme Court appointments are almost never purely merit based. Sotomayor joins a long line of nominees who were chosen in part because of political, ethnic, or gender considerations."

That's quite an understatment considering there have been only 2 women and 2 African Americans on the Court in its 200 plus years of existence. I didn't know white men were that superior to all others.
5.26.2009 10:59am
Ilya Somin:
But Alito was not seen as the top anything. Like Sotomayor, he was seen as a solid but unspectacular circuit judge.

Alito was long regarded as one of the top conservative circuit court judges. Few if any experts considered Sotomayor to be one of the top liberal ones prior to her appointment.
5.26.2009 11:03am
Soronel Haetir (mail):

ultimately, your argument seems to be that because the constitution was written by a bunch of rich white males who considered women unworthy of the vote
and didn't think that slavery was a deal-breaker, that the constitution should be forever interpreted from a perspective that advantages rich white men
over all others.


The Constitution has a proscribed method for making changes, and that method has in fact been used to correct some of the harms you bring up. Until that method is employed however, I believe that harms should remain entrenched.

As for Bush v. Gore I do think the Court got it wrong. Let Florida submit whatever slate of electors they wished and force the Congress to settle the matter, would have been a far more honest process.
5.26.2009 11:03am
Danny (mail):
I feel that Obama chose the weaker candidate. Also I am very disturbed by the Ricci case. The focus on ethnicity is so childish.
5.26.2009 11:07am
Rabbitears (mail):
'Her record is far less impressive than that of most other recent nominees'

Right. How does she measure up to the towering Harriet Miers?
5.26.2009 11:08am
Dan28 (mail):
Ilya,

Please amend the original post. You quote Sotomayor as saying this:


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.


That's the quote as it is appearing throughout the right wing internet. But here is the quote as she actually said it:


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


We can have a good debate about the merits of what she said there, but the "I would hope..." clearly changes the meaning of the comment and omitting it (which I assume you did inadvertantly) is doing her a clear and unfair disservice to her.
5.26.2009 11:10am
AF:
Alito was long regarded as one of the top conservative circuit court judges. Few if any experts considered Sotomayor to be one of the top liberal ones prior to her appointment.

Not sure what your basis is for either of those assertions. According to this Volokh post, objective measures of judicial quality show Alito and Sotomayor to be similar.
5.26.2009 11:10am
paul lukasiak (mail):
A truly ridiculous claim. Roberts was a DC Circuit judge for several years and also widely considered the top Supreme Court litigator of his generation. And, by the way, I disagree with him about many legal issues.

by "several" you mean two, right? And during that time, Roberts was (almost entirely) assigned non-controversial opinions to write (of 49 assigned opinions, only 2 elicted dissents).

As for being a top SC litigator, while that is no doubt the opinion among the rich white males whose interests are advanced by groups like the Federalist Society, he'll never be in the same league as someone like Thurgood Marshall -- or even David Boies.
5.26.2009 11:10am
Dan28 (mail):
And here's some context for that quote:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. 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.

Read the whole speech. It actually defies CRT identity politics in many ways.
5.26.2009 11:13am
Angus:
A truly ridiculous claim. Roberts was a DC Circuit judge for several years

Roberts was confirmed to the circuit court on June 2, 2003. He was nominated to SCOTUS in July 2005. How does 2 years and one month total up to "several years?"
5.26.2009 11:15am
paul lukasiak (mail):
Finally, this may be a good time to remind readers that I have long argued that judicial philosophy and ideology are legitimate considerations for senators to take account of in deciding whether or not to oppose a Supreme Court nominee.
_
apropos of nothing, but do you think that "judicial philosophy and ideology" should also be considered in matters of impeachment (e.g. since Congress decides what an impeachable offense is, should being a radical ideologue like Scalia subject one to impeachment proceedings?)
5.26.2009 11:16am
Grumpy Old Man (mail) (www):
Well, I'm glad to see she had some trial experience, albeit as a prosecutor, a type I don't have much use for.

I'd still like to see someone who never spent time at Columbia, Harvard, or Yale, and represented private clients--or ran for office.

There's a certain sameness about people from the Ivies, especially the big law schools, even if they purport to be "conservative" or "liberal."
5.26.2009 11:20am
studentactivism.net (www):
I don't think it's fair at all to say that Sotomayor rejects the idea 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, given that what she actually said about it was this:

"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."


That's not a rejection in my book.
5.26.2009 11:20am
Soronel Haetir (mail):
paul lukasiak,

If the HoR and Senate together agree that a justice has strayed so far from acceptable judgement, I would absolutely say that justice should be impeached. Impeachment as a tool to reign in government failed to take root which I think is a terrible mistake.

I doubt you'd be able to reach that threshold for either Scalia or Thomas however. I don't know enough about the 50s through 70s to judge whether any of the justices of that period would have been given the boot under such precident.
5.26.2009 11:22am
studentactivism.net (www):
My thoughts on the "wise Latina woman" comment are here:

http://studentactivism.net/2009/05/26/does-sotomayor-think/

Short version: I agree with her.
5.26.2009 11:25am
studentactivism.net (www):
Damn. I thought that would show up as a link. Here it is again:

Does Sotomayor Think Latina Women Are Better Judges than White Men? Is She Right?
5.26.2009 11:26am
DangerMouse:
At least Roberts isn't a flat-out unapologetic racist.
5.26.2009 11:26am
The Ivy Mafia:

There's a certain sameness about people from the Ivies, especially the big law schools, even if they purport to be "conservative" or "liberal."


We like it that way, plebe.
5.26.2009 11:27am
Ilya Somin:
Not sure what your basis is for either of those assertions. According to this Volokh post, objective measures of judicial quality show Alito and Sotomayor to be similar.

The post referenced also noted that Alito was 16th on the composite ranking in the paper by Choi and Gulati that it based its analysis, while Sotomayor would be in "the bottom half." Sotomayor and Alito were similar on some measures (Such as raw citation counts), but much of that has to do with the fact that Second Circuit opinions are more often cited than Third Circuit ones (Which the post didn't control for).
5.26.2009 11:28am
M N Ralph:

apropos of nothing, but do you think that "judicial philosophy and ideology" should also be considered in matters of impeachment (e.g. since Congress decides what an impeachable offense is, should being a radical ideologue like Scalia subject one to impeachment proceedings?)


Impeachment for ideology would be a radical departure from traditional understanding of impeachable offenses (and from text). It would be a very dangerous precedent by giving Congress incredible power over judges and thus disturbing the checks and balances that have served us well. Definitely "no" to your question.
5.26.2009 11:31am
Michael Edward McNeil (mail) (www):
How does 2 years and one month total up to "several years?"

Merriam-Webster's dictionary:
sev.er.al 2 a: more than one <~ pleas> b: more than two but fewer than many <moved ~ inches>
5.26.2009 11:34am
whit:

E.g., Ginsburg had a reasonable point re: the 13 yr. old girl strip search case, SAFFORD UNIFIED SCHOOL DISTRICT #1, ET AL., v. APRIL REDDING, that the males on the bench weren't particularly attuned to the 'reasonableness' of compelling a 13 yr. old girl to partially remove her undergarments. Here's Breyer drawing off his own background during oral:



*if* (and i am certain ginsburg agrees with the principle that...) the LAW is supposed to be gender neutral, then there should be no difference in "reasonableness" between a 13 yr old girl beingforced to submit to the above search or a 13 yr old boy.

iow, it is at least 'reasonable' to say that a woman on the bench might be better attuned to the reasonableness of such a search for a girl OR boy, but the idea that the search is less reasonable in the above case because the subject of the search is a girl, is clearly an example of the law not being gender neutral... something ginsburg is theoretically against.

personally, i do think that the search in that case WAS unreasonable. however, the fact that the subject of the search was a girl is, and should be, completely irrelevant.

it seems there is at least the implication that since 13 yr old girls are theoretically more squeamish about getting nekkid, that their increased squeamishness vs. boys should factor into the reasonableness of the search.

the necessary result of such 'logic' would be a different standard of what is a 'reasonable' search of a 13 yr old buy vs. a 13 yr old girl.

this sets aside the whole 'breast' issue. i guess in that case, it would be viewed as less invasive to ask a boy to take off his shirt than a girl... because post-pubescent girls have breasts. boys don't.

however, in the case in question, we are talking genitalia, which both genders have.

although the genitalia are different. and vive that!
5.26.2009 11:34am
studentactivism.net (www):
At least Roberts isn't a flat-out unapologetic racist.

No, he's a white guy who thinks that we should stop talking and thinking about how to counteract the effects of four centuries of racism. That's so much more genteel.
5.26.2009 11:36am
J.R.L.:
Can someone explain how Sotomayor's record is less impressive than Alito's, let alone "far less impressive"?

Seriously, I'd like to see Alito high jump 8' 1/2"!
5.26.2009 11:37am
martinned (mail) (www):

*if* (and i am certain ginsburg agrees with the principle that...) the LAW is supposed to be gender neutral, then there should be no difference in "reasonableness" between a 13 yr old girl beingforced to submit to the above search or a 13 yr old boy.

I highly doubt that either Justice Ginsburg or most other people would agree that what is reasonable is the same for boys or girls/for men or women. I certainly don't.
5.26.2009 11:37am
Johnny Canuck (mail):
"Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see."

From the same speech.
I think this is true and what "conservatives" blindly ignore.
Certainly in Canada, reading the "facts" from the trial court opinion, the "facts" from the appellate court opinion and the "facts" from the Supreme Court of Canada opinion can sometimes make one think there were three different cases.
5.26.2009 11:43am
Federal Dog:
No wise person would indulge in such racist and sexist sentiment. She has thus disqualified herself as a wise person, Latina, female, or otherwise.
5.26.2009 11:44am
whit:
imo, martinned, that's absurd.

a girl being forced to submit to exposing their genitals during a search SHOULD be exactly as reasonable as a boy being forced to do so. anything else, is unjust, and discriminatory, based on gender. that's supposed to be a no-no.

like i said, there is a difference with the chest area, because women literally have different ORGANS there (breasts vs. a chest), but that's not the issue here.

so you think it's ok to establish a different standard of reasonableness for when men can be forced to strip down and when women can?

fascinating.

what other areas do you think it's ok for their to be different standards of reasonableness?

fwiw, i am 100% of the belief that men and women are very different, and i am 100% in favor of cultural differences, chivalry, etc. but that's not a LEGAL standard. that's chosen behavior. two totally different things.

the law should be gender neutral, just as it should be race neutral.

note that various cultures have different standards whene it comes to getting undressed. for some people, it's no big deal whatsoever. for others, it's a big deal.

so frigging what? the law cannot set up various different scales of reasonableness when it comes to behavior by govt. agents and searches based on somebody's culture (or gender or race). that would legitimize PREFERENTIAL treatment based on race or gender.

"oh, you're a female, so it would be unreasonable to force you to strip or submit to a cavity search. if you were a male, it would be ok"
5.26.2009 11:46am
catchy:
whit -- the claim wasn't that there should be a different standard of search for girls vs. boys.

You already stated my position:

"... a woman on the bench might be better attuned to the reasonableness of such a search for a girl OR boy".
5.26.2009 11:51am
Ilya Somin:
here is the quote as she actually said it:


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



We can have a good debate about the merits of what she said there, but the "I would hope..." clearly changes the meaning of the comment and omitting it (which I assume you did inadvertantly) is doing her a clear and unfair disservice to her.


I don't think that the "I would hope" materially changes anything in a context where it's pretty clear that she thinks that the hope is justified. Nonetheless, I will note it in an update.
5.26.2009 11:52am
AF:
The post referenced also noted that Alito was 16th on the composite ranking in the paper by Choi and Gulati that it based its analysis, while Sotomayor would be in "the bottom half." Sotomayor and Alito were similar on some measures (Such as raw citation counts), but much of that has to do with the fact that Second Circuit opinions are more often cited than Third Circuit ones (Which the post didn't control for).

Indeed the post referenced did note the composite rankings, in the following paragraph:


Choi and Gulati report a composite ranking—but for technical reasons (they controlled for various factors, for example, variation between circuits) it is difficult to put Judge Sotomayor into such a ranking. In addition, Choi and Gulati's basic approach, which is to give equal weight to productivity, quality, and independence, is contestable, as is their decision to base quality on invocations and citations to top-twenty opinions. They check for robustness by reporting how rankings change as the weightings are adjusted, but their robustness checks are too elaborate to repeat here. Wood ranked eighth; Alito sixteenth. Sotomayor would be in the bottom half. However, I would not put too much weight on this conclusion. Choi and Gulati intended their composite ranking as an experiment to provoke discussion on how best to evaluate and rank judges.

One can, however, make some rough judgments based on the disaggregated rankings. . . .


To quote a statistic like that without mentioning that in the very reference you cite your co-blogger (and fellow conservative) disclaimed it is not consistent with good quoting practices, at least in academic writing. It is standard practice in political advocacy, which appears to be what you're involved in, your laconic tone notwithstanding.
5.26.2009 11:53am
paul lukasiak (mail):
The Constitution has a proscribed method for making changes, and that method has in fact been used to correct some of the harms you bring up. Until that method is employed however, I believe that harms should remain entrenched.

the problem here is obvious -- when it comes to questions of those who are "traditionally" disempowered, the likelihood of reaching the extremely high bar set by the constitution for amendments is infintesimal. Indeed, equal rights for women, who make up over half the electorate, are not part of the constitution because the bar has been set so high -- and we had to go through a civil war in order to abolish slavery and make black people equal (and even then, they were "separate but equal" for another 84 years).

In other words, the constitution's amendment provision is not adequate to serve a nation founded on the premise that "all men are created equal..and endowed...with certain inalienable rights"
5.26.2009 11:56am
martinned (mail) (www):
@whit: I think a reasonableness standard calls for an individualised approach, based on all the facts of the case, within the limits set by general principles distilled from case law.

Males are far more likely than females to commit violent crimes, meaning that it is reasonable for the police to be more careful around them. Same for young men vs. older men, and in many circumstances, minority men vs. whites, people with tattoos, poor people, etc. All such factors are legitimately considered when judging whether the behavior of the police or other authorities was reasonable. Not to mention factors that are not characteristics of the suspect, such as the time of day, the nature of the neighbourhood, etc. (This list is tailored to a 4A context, just to illustrate my point.)

No two cases are the same, which is why the lawmaker would choose to write only a general principle of reasonableness into the law, instead of being more specific.
5.26.2009 11:56am
J.R.L.:
"I don't think that the 'I would hope' materially changes anything in a context where it's pretty clear that she thinks that the hope is justified. Nonetheless, I will note it in an update."

Isn't the difference: "I know I am superior because of my race and gender." vs. "I think I am superior because of my race and gender."?

Agree that it's not a material issue.
5.26.2009 12:00pm
Rock Chocklett:

In other words, the constitution's amendment provision is not adequate to serve a nation founded on the premise that "all men are created equal..and endowed...with certain inalienable rights"


Then we should amend the Constitution to make the amendment process easier. The answer is not to have judges make de facto amendments for us.
5.26.2009 12:03pm
metro1 (mail) (www):
There seems to be a dearth of commentary on this point - and lack of short-term historical memory. If Hispanics (and/or others) were so concerned about having a Hispanic on the Supreme Court, why didn't they object more when Senate Democrats blocked even having a vote on Miguel Estrada for the D.C. Court of Appeals - and likely nomination thereafter to the U.S. Supreme Court (by George W. Bush)?

See here: http://www.foxnews.com/story/0,2933,77667,00.html
5.26.2009 12:04pm
martinned (mail) (www):

Then we should amend the Constitution to make the amendment process easier. The answer is not to have judges make de facto amendments for us.

Whatever the merits in this sub-thread, this has to be the answer of the day. Quel logic!!!
5.26.2009 12:06pm
SeanInNyc (mail):
This is not a Supreme Court nomination.

It's ACT I of Obama 2012.

Obama is nominating an hispanic woman that is clearly unqualified and profoundly objectionable so that Republicans must oppose her lest the base totally give up on them.

The flip side is that liberals will go on to portray ideological opposition to an unqualified activist judge as "Republicans hate Hispanics".

Sadly, Hispanics will buy it whole cloth.
5.26.2009 12:09pm
whit:

Males are far more likely than females to commit violent crimes, meaning that it is reasonable for the police to be more careful around them. Same for young men vs. older men, and in many circumstances, minority men vs. whites, people with tattoos, poor people, etc. All such factors are legitimately considered when judging whether the behavior of the police or other authorities was reasonable. Not to mention factors that are not characteristics of the suspect, such as the time of day, the nature of the neighbourhood, etc. (This list is tailored to a 4A context, just to illustrate my point.)



it's true that (certain) minoirty men are more likely to commit violent crimes. certain other minorities are far less likely fwiw (japanese americans fwiw).

however, it is NOT justifiable under the law to treat A individual of a particular race differently merely because their racial group is more likely to commit violent crime.

but my point is that procedures like strip searches, etc. cannot be tailored to an individual's culture, race, or gender, such that for example:

we fingerprint and photograph everybody who is booked. for people of some cultures (like muslim women who wear veils etc.) that is far less "reasonable" (for them) than the average person who walks around face uncovered. women are brought into the booking room in front of men. again, it might be less reasonable for THEM but so frigging what?

often, the person fingerprinting the arrestee is of the opposite gender. for people of some cultures, religions, etc. that may be much less reasonable than others (having their hands touched by a person not their husband or relative)

again, TOUGH.

the law must be gender and race neutral. that does NOT mean that they are the same. it means that they deserve equal treatment, and treatment as individuals, not as members of a race or gender.

i am interested that you think it's ok for police to use a higher level of defensive tactics against minority men than white men. or around poor people vs. rich people.

not sure that view will get you far in most places.

so again, it is totally wrong to take gender into account when establishing whether a strip search is reasonable. it runs contrary to equality under the law.

it is undeniably true that there are all sorts of differences that affect how reasonable it might seem to the SUBJECT of the search based on their race, gender, religion or culture.

fortunately, the standard we use is the reasonable person standard. not the "reasonable fundamentalist muslim woman" standard for whom even the removal of the veil would be likely more unreasonable than a strip search of a woman who happens to be an exhibitionist and nudist.
5.26.2009 12:09pm
paul lukasiak (mail):
Then we should amend the Constitution to make the amendment process easier. The answer is not to have judges make de facto amendments for us.
_
interpreting the constitution in a manner consistent with advances in scientific knowledge and ethical developments is not amending it -- its an interpretation based on the "radical" (for its time) spirit that served as its foundation.
5.26.2009 12:13pm
Soronel Haetir (mail):

@whit: I think a reasonableness standard calls for an individualised approach, based on all the facts of the case, within the limits set by general principles


That sounds nice but it gives no (or very little) guidance to the official charged with making a call. The standard you seem to endorse leaves an awful lot of discretion in the hands of whoever is making that call and then doesn't do a great deal to protect that person if they are deemed to have gotten it wrong.

This is one area that I do think qualified immunity gets it right. The person who makes the mistake the first time is let off but everyone is put on notice. It does have the unfortunate effect that analagous but somewhat different situations still receive the benefit of the doubt.
5.26.2009 12:15pm
whit:
soronel, you misatrributed somebody ELSE's statement to me...

i did NOT say "I think a reasonableness standard calls for an individualised approach, based on all the facts of the case, within the limits set by general principles "

yet you quoted me as saying that.

hth
5.26.2009 12:19pm
RPT (mail):
"DM:

Lovely. A racist lib who, instead of being a blind justice, decides cases based on what race you are."

To which case(s) are you referring?
5.26.2009 12:24pm
eddie (mail):
Sort of ironic that the "evidence" upon which Professor Somin chooses to focus is a statement and not an actual judicial decision.

So many commentators have stated with such facility how "clearly unqualified and profoundly unacceptable" Judge Sotomayer is without any basis. I guess that would make G. H.W. Bush truly incompetent for appointing her in the first place.

But in a place like this, incompetence, intelligence and quality are terms that really have no meaning except agrees with me or not.

I guess it would be too much to expect a law blog to actually discuss ideas instead of window dressing.
5.26.2009 12:25pm
studentactivism.net (www):
the constitution as a document did not purport to guard against the complained of harms [of "constitutional racism and sexism"]. Now, if something like the Equal Rights amendment had actually been ratified and judges ignored it I think you would have a vlid complaint.

Something very much like the Equal Rights Amendment was ratified in 1868, and for nearly a century judges -- white male judges -- did ignore it.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Do you really want to argue that the Supreme Court's pre-Brown rulings on race discrimination were consistent with the Fourteenth Amendment?
5.26.2009 12:27pm
Dan28 (mail):
@ Ilya,

I think the "I would hope..." changes the meaning in two respects. First, it makes the statement conditional. "A wise Latina woman would" suggests an inflexible universality; all wise Latina women would make better decisions than all wise white men. "I would hope" suggests awareness that it is possible that it is false. Like all qualifiers, it makes the position seem less certain, which means that removing it makes her seem more ideological.

Second, read with this paragraph, the "I would hope" takes on a greater meaning:


As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. 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.


What she's saying here is that white men are perfectly capable of reaching into the experience of a latina woman and understanding the world from her perspective (as opposed to a orthodox CRT types who suggest that such an understanding is impossible). But it is a choice for white men to do so, it's difficult to reach out of your cultural perspective and many white men will fail to do so. Her "hope" is that having significantly different background experiences give her an additional perspective that impact her decisions. That is not quite the same thing as saying that all latina judges will do better than all white male judges.
5.26.2009 12:36pm
Soronel Haetir (mail):
whit,

I was quoting someone else directing a statement/query to you.
5.26.2009 12:38pm
whit:
ok. maybe i don't understand what @whit means.

i was wondering that when i posted.

if i am uninformed as to the usage of the @ sign, i suggest plenty of others are as well.
5.26.2009 12:42pm
Joseph Slater (mail):
If Hispanics (and/or others) were so concerned about having a Hispanic on the Supreme Court, why didn't they object more when Senate Democrats blocked even having a vote on Miguel Estrada for the D.C. Court of Appeals - and likely nomination thereafter to the U.S. Supreme Court (by George W. Bush)?

Yeah, that's mighty weird. See also African Americans not flocking to the campaigns of Michael Steele or A. Keyes. It's almost as if these groups care about the positions candidates (and judicial nominees) take.
5.26.2009 12:48pm
martinned (mail) (www):
@whit: I use the @ to mean "at", i.e. to indicate who it is that I am specifically replying to. (If anyone.)
5.26.2009 12:51pm
levisbaby:

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.

This sentence pretty much sums up the intellectual bankruptcy of what passes for "conservatism" or "libertarianism" today.

She is liberal, thus likely to mistaken positions.

No need to look over her hundreds of published opinions.

Priceless.
5.26.2009 12:59pm
Desiderius:
levisbaby,

"No need to look over her hundreds of published opinions.

Priceless."

Nor for you to look at Ilya's, evidently.
5.26.2009 1:28pm
levisbaby:

Nor for you to look at Ilya's, evidently.

Actually I read the entire thing twice because I couldn't believe how facile it was after reading it once.

No substantive discussion of her hundreds of opinions, just a reference to that laughable Choi/Gulati "study."

Oh, and did did you see this "The current nominee's qualifications are likely better than Harriet Miers' were"? Likely?

Wow, that is a bit like saying that Captain Kangaroo "probably" killed fewer people than the Manson family.

Just simply laughable.
5.26.2009 1:55pm
Desiderius:
"Just simply laughable."

Hate to leave you hanging, dude, but I'm not joining in.
5.26.2009 2:29pm
Lou Ferris (mail):
Check out this parody of the Sotomayor confirmation hearings:

http://www.optoons.blogspot.com/

"Senators Empathize With Sotomayor's Inability to Impartially Apply the Law; Confirm Her to Supreme Court"
5.26.2009 2:34pm
miss p (mail):
I always thought Sotomayor's comment about the wise Latina jurist was an attempt at humor, one of those play-chauvinist boasts as one might make during a commencement address (e.g., "I would hope to see more Cornell alums than Brown alums in the upper echelons of society."). In any case, I agree with Dan28 that Prof. Somin clearly took it out of context. She says clearly that since a judge cannot help but relate cases to her own experience, she should mitigate bias by drawing connections between that experience and the experience of people who seem outwardly different. She also expresses optimism about thoughtful judges' capacity to do so. It surely doesn't sound like straightforward racial identity politics to me.

In any case, this post is unwittingly self-parodic. Is your "general sense" that Sotomayor is "very liberal" based on anything but Fox News? And just how "likely" is it that this Pyne Prize-winner and seventeen-year federal judge is more qualified to serve on the Supreme Court than Harriet Miers? Can you give us some odds?
5.26.2009 3:26pm
PubliusFL:
Dan28: "I would hope" suggests awareness that it is possible that it is false. Like all qualifiers, it makes the position seem less certain, which means that removing it makes her seem more ideological.

Right, it's a humble kind of racism and sexism. "I can't be certain that my race and gender are superior on average, but I would hope so."

miss p: She also expresses optimism about thoughtful judges' capacity to do so.

As long as the thoughtful judge is Hispanic and female. Or at least that's Sotomayor's preferred outcome (what she "hopes" for).
5.26.2009 3:47pm
miss p (mail):
PubliusFL: You write, "As long as the thoughtful judge is Hispanic and female." Did you even read the speech or are you just basing this assessment on Prof. Somin's out-of-context quotation?

Here's what Judge Sotomayor said on precisely that issue:

I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
5.26.2009 4:03pm
PubliusFL:
Let me be more specific, then. Granted, Judge Sotomayor expresses general optimism about the capacity of thoughtful judges to mitigate bias etc. But she expresses MORE optimism about the ability of Latinas to do so. She expresses optimism (hope) that a Latina "would more often than not reach a better conclusion than a white male who hasn't lived that life." She says "many are so capable," but clearly she believes that Latinas are a little more capable in that respect.
5.26.2009 5:15pm
Mark EJ Jones (mail):
Re: wise latina woman vs white male

from: Mark Jones, London, England

(your comment was quoted on the BBC website
http://news.bbc.co.uk/1/hi/world/americas/8068467.stm )


Ilya, I think you have taken the words too literally, misunderstood their context and hence their meaning. On your own terms and by strict "logic" you would be correct, and it was perhaps unwise (with hindsight) for Ms S have ever made so misleading a statement - though she was probably exaggerating to make a point, ie, that her coming from a poor latino background was no disqualification. The intended meaning of Ms Sotommayor's quoted words, I believe, is this. A wise Latina woman (by implication from a poor background, ie herself) who has lived in crowded accomodation in a ghetto setting has probably encountered thousands of human stories face to face and day to day, and seen everyday conflicts and their resolution (both well and badly done) over and over again. A rich white man from a priviledged background MAY have lived a sheltered life and moved in a very resticted circle of other privileged people, living with far more space and far fewer human contacts. He may be very well read, but his innate judgement of human justice may be based on far less personal experience, and far fewer role models of peacemakers. Thus, the wise Latina woman in that event would possibly make far better decisions than the white male. None of which, incidentally, implies the misjudgement that those decisions would be based on race or ethnicity.
I am torn as to whether you are against Ms S on political grounds and raking up all the "intellectually sound" evidence you can find, against her, or whether you are as intellectually honest and fair minded as you imply.
If you are trying to blow her out of the water on a charge of erroneous judicial philosophy due to the apparent racism of these remarks, I suggest you go away and meditate for a while on the wisdom of your actions.

There is some politics in Supreme Court appointments, and with good reason.

Just as Obama has made great progress in rebuiding America's image atround the world, a prominent Hispanic female on the Supreme court (provided she is competent) will perhaps draw thousands of young adults ,living on the margins of society, into a greater respect for the rule of law. Thus , provided her decisions are workmanlike,she could be of great consequential benefit to the judicial system and to justice in the USA. ( Rather the opposite effect to a well-known and now retired High Court judge in the UK, who by his complete ignorance of everyday culture, brought the Courts into disrepute).

I agree that her judgements need to be fair and based not on race , but the quotation you attack is no proof of her racism.

Mark Jones, London, England
5.26.2009 5:52pm
Mark EJ Jones (mail):
Now that I have read the whole of the speech in question

(available in full
here )


It becomes clear that you have completely misrepresented the words which you took out of context.

As a Philosophy graduate I must first ask you, is "Judging" a fact-based, logical, mechanistic and value free activity?

No. It is, and has to be , affected by human judgement, in a non-trivial sense.

For that reason , judgements will, especially in the most difficult cases, be affected and infected by the mores of society and by the beliefs and life experiences of those judging. This was clearly and well argued in the speech. Look for instance at the examples quoted immediately after the "notorious" words you have attacked.

In the historic past, it is a matter of record that groups of white, male judges have made appalling decisions ( according to the mores of today's society). See the speech for examples. ( mainly racial and gender discriminatory laws of the past).

The hope that was expressed could be interpreted thus: "if white males in the past have made bad law, I hope that I as a (wise?) female ethnic minority judge of today will do better."

Since this forum seems to be predoninantly interested in Law, it seems to me that the case rests.

I think your fear can be summed up thus:

If judging is not a clinical and value free activity, whose values are going to predominate - white rich male dominated "status quo" (Republican?) or the poor masses (Democrat?).

So, intellectually , this has been a dishonest rant, attempting to attack a nominee for Supreme Court with pseudo-intellectual ammunition, whilst really trying to promote a right wing position.

Sorry if that sounds a bit rude. The lady nominated has exceptionally sound judicial philosophy, unlike her critics.

Mark Jones . London, England.
5.26.2009 6:47pm
metro1 (mail) (www):
Joseph Slater:

So Hispanics are in greater agreement with the substantive positions of Judge Satomayor than those of Miguel Estrada?

Fascinating. On what do you base this opinion?

And I didn't know Michael Steele or Alan Keyes were being considered for appointment to the bench. I suppose they would be just as good judges as, say, Terry McAuliffe or Gary Condit. Are they being considered for the bench too?

Seriously, isn't it fair - during discussion of ramifications for objecting to the (arguably) first Hispanic Supreme Court nominee - to ask where were similar objections to Miguel Estrada (who was likely headed for the Supreme Court) - and was blocked by Senate Democrats?
5.26.2009 7:46pm
metro1 (mail) (www):
Mark EJ Jones:

In the U.S. we (hope) Judges decide cases based on the law and the facts. We hope the law and the facts will not be trumped by a Judge's reference to special knowledge based on their ethnicity.

Isn't that approach taken in the UK too?

In any event, in Judge Satomayor's original quote from the post above, switch her phrases "Latina woman" and "white male." Now read it again. Do you still agree with it? If the answer is "no" - I think your opinion in your comment above may be based on something other than judicial philosophy.
5.26.2009 7:55pm
Mark EJ Jones (mail):
metro1

In simple cases, the law and the facts are clear, and all lawyers (and judges) agree.

Even there, what you think are facts, are not always so.

For a long time, US law did not define a black man as a man. So would the "fact" that a black man was not a man, have trumped common sense and justice. Well, yes it did.

You need to read the whole of her speech (5 pages, I gave you the link). When you have read and understood it, you will see that in the kind of situations you are thinking of (crimes etc) she will make the same decision as any white guy.

She clearly states that she will try her utmost to be fair according to the law. It is not a case of her special ethnic knowledge changing that.

Her speech was on a far deeper level of philosophy which not everyone understands. Did you get my point about some judgements NOT being about facts?

Remember the famous case of King Soloman and the two women who both claimed the baby was theirs. No facts to go on, so how did the wise man decide what to do? He used his experience of life. I think he made the right judgement.
5.26.2009 8:07pm
Xenocles (www):
"She is liberal, thus likely to mistaken positions."

Is this really such a shocking thing for a conservative to say? Let's go through the logic:

1) Conservatives and liberals are pretty much ideological opposites.
2) From (1), a conservative person can be expected to disagree with a liberal on legal and political issues.
3) A person who disagrees with someone believes that other person is mistaken.
4) Therefore, a conservative is likely to believe that a liberal's positions are mistaken. Conversely, a liberal will similarly assess a conservative's positions.
5.26.2009 8:09pm
Mark EJ Jones (mail):

Sorry metro1, forgot to address your second point.

( This point was already answered in a link from an earlier post by studentactivism:
....." As for what happens when you reverse the statement, no, of course I don't like it. Most statements of opposition to white male supremacy become unpalatable when recast as statements in support of white male supremacy." )

Remember 200 years of almost exclusively white male judges. Was that logical ie did white males do such a great job and so much better than any woman or ethnic minority could have?

She was speaking figuratively to a special audience who understood the "code" or shorthand she was speaking in. For example, when she said, "that life" she meant "that kind of life". Her sentence was not a complete sentence without adjoining it to the one that followed, and to nuances within the speech, both before and after.

You really can't take that kind of speech out of context.

People who try to do so are really foolish and wasting everyone's time.
5.26.2009 8:20pm
miss p (mail):
PubliusFL:

As I said before, I believe that one sentence, taken out of context in Prof. Somin's post, was actually a stab at humor -- a playful faux-chauvinism. In any case, it's not that white men, full stop, are less capable of making those good decisions, but that white men without the "richness of experience" that she believes characterizes the lives of women and people of color are less likely to make them. Some white men very well may have grown up in diverse environments or faced adversity, and it is this "richness of experience" that makes for a wise and capable judge. If she was being sincere (and not joking around as I have suggested), the most you can fault her for is the assumption that women and people of color are more likely to have this "richness of experience" than others.
5.26.2009 8:24pm
Javert:
Whoever she "empathizes" with, it is not talented individuals who work hard to improve their lives. See her decision in Ricci vs. DeStefano -- the infamous New Haven firefighters case in which some firefighters were denied promotion simply because no blacks passed the exam.

And yet some people claim that there's less tribalism in America today.
5.26.2009 8:37pm
Rich Rostrom (mail):
Joseph Slater: "See also African Americans not flocking to the campaigns of Michael Steele or A. Keyes. It's almost as if these groups care about the positions candidates (and judicial nominees) take."

Yet we are told by Tom Goldstein at ScotusBlog that
To Hispanics, the nomination would be an absolutely historic landmark. It really is impossible to overstate its significance.
Miguel Estrada's Appellate Court nomination was blocked in spite of his superb qualifications precisely because he might achieve this landmark. (It was an open secret that Democrats and their allies wanted to prevent Estrada from becoming eligible for the Supreme Court - as they would not be able to block his confirmation, and he had the wrong ideology.)

Indeed, the fate of Estrada shows that Goldstein's "historic landmark" is nothing of the kind; a Hispanic could have been appointed to the Court years ago. Goldstein's whipped-up excitement over Sotomayor is an attempt to suggest a history of racist obstruction by the usual suspects (w—— R————-s) where none exists.

It is true there have been no Justices with Hispanic surnames. It is also true that of the 108 people that have served on the Court, there were five with Irish surnames (McKenna, Murphy, Brennan, O'Connor, Kennedy), and seven Jews (Brandeis, Cardozo, Frankfurter, Goldberg, Fortas, Ginsburg, Breyer), but only two Italians (Scalia, Alito), only one non-Jewish German (Burger), only one Scandinavian (Rehnquist), and AFAICT not a single Slav, Magyar, Greek, or Romanian.

IOW, SCotUS has been filled from the ranks of the traditional (anglo) elite, leavened since circa 1900 with politically ambitious Irish and high-performing Jews. That no hispanics have been appointed has little to do with bigotry, except perhaps anti-Catholic sentiment.

Historically, there were relatively few Hispanics in the U.S., and they were disproportionately young. In 1980, only about 4% of Americans aged 50-65 (the typical age for a new Justice) were hispanic. Most hispanics were impoverished dwellers in the rural southwest, or working-class recent immigrants. But suppose some unusual hispanic achieved distinction in the law at that time: would there be much resistance to his judicial advancement merely because of his particular ethnicity? I don't see it.
5.26.2009 8:41pm
studentactivism.net (www):
SCotUS has been filled from the ranks of the traditional (anglo) elite, leavened since circa 1900 with politically ambitious Irish and high-performing Jews. That no hispanics have been appointed has little to do with bigotry, except perhaps anti-Catholic sentiment.

Seriously? The fact that SCOTUS "has been filled from the ranks of the traditional (anglo) elite, leavened since circa 1900 with politically ambitious Irish and high-performing Jews ... has little to do with bigotry?"

Seriously?
5.26.2009 8:53pm
PubliusFL:
miss p:

Maybe it was an attempt at humor. I've heard the audio, and if so, she doesn't do a very good job of conveying humor through her tone of voice. Of course, I haven't seen the video, and maybe she conveyed the joke through a wry grin at the appropriate moment. I couldn't hear anyone laughing though.

If it was humor, though, it was ill-advised. How would such "playful faux-chauvinism" be received from a white male?
5.26.2009 10:07pm
miss p (mail):
PubliusFL: I'm not interested in going further down this digressive path. If you want to have an honest intellectual discussion of Judge Sotomayor's politics, qualifications, and views on the role of judges, I'm game, but this is just getting silly. The judge was speaking at an awards ceremony for a "cultural diversity award" about whether and how being Latina affected her judging. Her conclusion was, "I hope that it affects me in these positive ways if it affects me at all, but I'm not sure." We would not ask a white male judge the same question because (a) judges have always been mostly white men and (b) we view their cultural biases and experiences as societal norms. In any case, her answer reveals no more insidious bias than an "Italians do it better" t-shirt.
5.26.2009 10:47pm
Suzy (mail):
I hope this is indeed the talking point her right-wing opponents going to try to use to defeat her, because one quick read of the speech shows how utterly wrongheaded this analysis of her quote is.

There's a legitimate issue here: in what way and to what extent is personal experience relevant in judging? People could disagree with a nominee's position on that issue. However, to try to paint her as simply saying that Latina woman are better judges than white men? It just doesn't pass beyond undergrad shenanigans. Unworthy.
5.26.2009 10:55pm
metro1 (mail) (www):
Mark EJ Jones:

Well - if you're going to cite to King Solomon - the forerunner of centuries of white, male judges, how's this?...

"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 [e.g., King Solomon] who hasn't lived that life."

Hmmm. Maybe King Solomon can be improved upon! What would Judge Satomayor do with the proverbial one baby and two claimants?

Bring on the Latinas!

In any event: You may agree with her full speech within the context of its many pages and statements. But, at some point, don't you have to concede that the Latina/white male sentence quoted in the original post above is just morally (and factually) wrong? Context is great. But she makes a declarative statement that is simply racist and sexist. No context - no matter how many pages, and no matter how many other statements accompany it - can make it not so.

To put it another way: we all have different life experiences. My life experiences will, of course, inform in a good way (or a bad way) the way I would judge a case compared to another judge. (And certainly one hopes that judges discuss these things collegially, and pose questions to the parties, and do research, to help alleviate gaps in their knowledge). But there are some "gaps in knowledge" that I cannot discuss (or question or research) away - e.g., my ethnicity and gender. This being the case, Judges should not use this type of different "life experience" - their ethnicity and gender itself - to reach a different conclusion in a case. That approach is - by definition - racist and sexist. That is why Judge Satomayor's quote above is morally (and factually) wrong. No context can make that not so.
5.26.2009 10:57pm
Suzy (mail):
On the one hand, I hope some Senator asks her questions like these, because she'll mop the floor with whoever does. On the other hand, I hope that doesn't happen, because the current predicament of the GOP is not healthy for the country, and whoever tries that move is going to make the party look even worse.

Once we have agreed that experience informs judgment, then how on earth could her statement be "factually" wrong? That IS her statement. Luckily, she went on to observe that most judges are able to understand all kinds of things they have not personally experienced.
5.26.2009 11:42pm
metro1 (mail) (www):
Suzy:

We all have different life experiences. My life experiences will, of course, inform in a good way (or a bad way) the way I would judge a case compared to another judge. (And certainly one hopes that judges discuss these things collegially, and pose questions to the parties, and do research, to help alleviate gaps in their knowledge). But there are some "gaps in knowledge" that I cannot discuss (or question or research) away - e.g., my ethnicity and gender. This being the case, judges should not use this type of different "life experience" - their ethnicity and gender itself - to reach a different conclusion in a case. That approach is - by definition - racist and sexist. That is why Judge Satomayor's quote above is morally (and factually) wrong. No context can make that not so.
5.26.2009 11:49pm
miss p (mail):
metro1: Copying a block of text and posting again does not make it any more forceful an argument. Also, her statement cannot be factually wrong. It is a statement about something she "would hope."
5.26.2009 11:58pm
Suzy (mail):
Where did she ever say that she would use her "ethnicity and gender itself" to reach a different conclusion in a case? I cannot fathom what that means, nor how it would be inherently racist or sexist to acknowledge that personal experience in life can influence how facts are understood. Would it be racist for a black judge to rule against segregation but not racist for a white judge to rule either for or against? I don't understand. What exactly does it mean for ethnicity and gender to be used to reach a different conclusion?
5.27.2009 12:14am
metro1 (mail) (www):
Suzy (and miss p):

Here's what Judge Satomayor 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."

To suzy: I agree that different life experiences can be good (or bad) in helping a judge in deciding a particular case. And certainly life experiences can be tied to things like ethnicity and gender. But she didn't say "life experiences." She said "Latina woman" + "white male" + "more often than not" (majority of the time). (She says "I hope" - but if you read it, it appears (to me) that her "hope" is based on her belief that it's true). In any event, the bottom line is that life experiences will always have some influence on judges' (and every person's) decisions - but we should not think (or hope) that the mere fact that a person is a "Latina woman" would "more often than not" cause her to reach a "better conclusion" than a "white male." Suppose a Republican President's nominee for the Supreme Court had said:

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

Do you agree with that? Would you want the person who said that to be a judge? Why not?

miss p:

This goes to your comment too. Suppose a Republican President's nominee for the Supreme Court had said:

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

Do you agree with that? Why not? Would you consider it factually (or morally) wrong? Doesn't it contain the speaker's implicit view that the first ("wise") person will "reach a better conclusion" the majority of the time ("more often than not")?
5.27.2009 12:48am
Cobra (mail) (www):
Javert writes:

"Whoever she "empathizes" with, it is not talented individuals who work hard to improve their lives. See her decision in Ricci vs. DeStefano — the infamous New Haven firefighters case in which some firefighters were denied promotion simply because no blacks passed the exam.

And yet some people claim that there's less tribalism in America today."




Some facts:

New Haven, CT is an "unofficially" segregated city of 125,000, 33% non-Hispanic White.

New Haven's Fire Department was founded in 1789.

New Haven didn't get it's first Black Fireman assigned to a firehouse until 178 years later (George Sweeney).

By 1967, a decade later, out of 400 New Haven Firefighters, only a handful were Black and none were Hispanic, to the point where...

"In 1973, Sweeney, then the president of the Firebirds, was part of a landmark lawsuit that changed the complexion of the department. In 1973 and 1974, a federal judge issued rulings ordering the fire department to recruit, hire and promote minority fireman, and at one point, there was a one-for-one edict, meaning for every white firefighter hired, the department had to hire one minority group member."

I post this, because I sincerely doubt the history and context of race, firefighters and City of New Haven are ever given the detailed review needed to sufficiently evaluate this case.

—Cobra
5.27.2009 12:50am
PlugInMonster:
This is unbelievable. If a white judge said something similar about "wise white Catholic" or whatever all of you libtards would instantly call him a KKK, Nazi, whatever.
5.27.2009 4:25am
jukeboxgrad (mail):
metro:

Suppose a Republican President's nominee for the Supreme Court had said:

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

Do you agree with that? Why not?


If you want to "suppose" such a statement, then you should go a step further and "suppose" the parallel universe implied by the statement. That would be a universe where the country, the government and the Court were historically dominated by, and are still dominated by, Latina women. In that parallel universe, it would indeed make sense to agree with the white male who came along and made the parallel statement you suggested.

In my opinion, there's a strong case to be made that someone who grows up in a world that looks just like them is going to fail to learn certain important things about the world, as compared with someone who's different. That is, I don't think fish necessarily have the best understanding of water.

I think it's very noticeable that the person who does the best job understanding and describing a certain world is often a person who is an outsider to that world. Is it an accident that the biggest Christmas song of all time was written by a Jewish guy? I don't think so. Who wrote a great book describing "Democracy in America?" A French guy.

So there is indeed a special 'richness of experience' that can be gained from being different, and there is also a special 'richness of experience' that can be gained from overcoming adversity (and those are two separate characteristics, although they sometimes coincide, and they coincide in her).

============
miss p:

If she was being sincere (and not joking around as I have suggested), the most you can fault her for is the assumption that women and people of color are more likely to have this "richness of experience" than others.


As I've just explained, I see no problem with the assumption that being different and overcoming adversity can provide a special 'richness of experience' (and I agree with you that it's not clear that she was even seriously saying this).

============
metro:

judges should not use this type of different "life experience" - their ethnicity and gender itself - to reach a different conclusion in a case.


If a "life experience" of being different and overcoming adversity (as a consequence of "ethnicity and gender," or for any other reason) has led me to a deeper understanding of how the world works, it would be wrong for me to put that understanding aside. And it's not a matter of reaching "a different conclusion." It's a matter of reaching a better conclusion.

Aside from that, no one is free of ethnicity and gender. Even the bland majority ethnicity of being white is still an ethnicity, even if we choose to perceive it as more of the absence of ethnicity. So whether you like it nor not, every judge brings their ethnicity and gender to the table, and it plays an inevitable role in how they look at the world. It's just that ethnicity and gender tend to be invisible to us (or at least to some of us) when ethnicity=white and gender=male.
5.27.2009 7:09am
Cobra (mail) (www):
PlugInMonster writes:

"This is unbelievable. If a white judge said something similar about "wise white Catholic" or whatever all of you libtards would instantly call him a KKK, Nazi, whatever."




And William "Operation Eagle Eye" Rehnquist not only was appointed to the SCOTUS, but was Chief Justice untill he died four years ago, so....


--Cobra
5.27.2009 8:23am
jukeboxgrad (mail):
cobra:

William "Operation Eagle Eye" Rehnquist


And there's this:

Rehnquist later bought a home in Vermont with a restrictive covenant that barred sale of the property to ''any member of the Hebrew race."
5.27.2009 8:33am
PubliusFL:
Given Chicago's history of racial segregation through restrictive covenants, I hope no one looks too closely at Barack Obama's chain of title, or they might discover that HE is a racist too!
5.27.2009 9:40am
Oren:



Alito was long regarded as one of the top conservative circuit court judges. Few if any experts considered Sotomayor to be one of the top liberal ones prior to her appointment.

Smaller field makes it easier to stand out.
5.27.2009 1:28pm
Suzy (mail):
In response to what metro1 wrote:

"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."

To suzy: I agree that different life experiences can be good (or bad) in helping a judge in deciding a particular case. And certainly life experiences can be tied to things like ethnicity and gender. But she didn't say "life experiences."

She literally says, "with the richness of her experiences", which sounds much like "life experiences" to me. She also wasn't talking about better conclusions in general--she was talking about the history of decisions about gender and race in this country. That's why she cited the example of no woman being affirmed in a discrimination claim until 1972. And that's also why she explicitly added that a bunch of old white men can indeed understand the merits of such a claim, since obviously they favored it!

Not only do I understand what she's saying but I agree with it completely, and it sounds like you do too. People's experiences influence the facts they perceive, but if they take the proper time to investigate, they also can understand things that have no parallel in their own experience. That's what she said. Who denies it? Even some of our wises justices, as she pointed out, made bad decisions about discriminatory policy. But more of those same old white guys corrected that problem, as she also pointed out. One would hope that most of the time, a wise old Latina woman would not have made that mistake, though as her remarks also make clear, there's no guarantee that a particular personal history leads to a particular good decision.

Why her remarks are being interpreted to have precisely the
opposite of their meaning is obvious, though: politics. Good luck with that strategy. Just this morning I see a brilliant article about how Sotomayor is not a pick on the merits. Nice slap in the face--keep it up if you want to completely alienate even more of the electorate.
5.27.2009 1:57pm
jukeboxgrad (mail):
I hope no one looks too closely at Barack Obama's chain of title


I tend to think that the crowd which stared at his birth certificate with an electron microscope would have looked there, and made a big noise if there was even a slight problem with the kerning.
5.27.2009 5:56pm
Rich Rostrom (mail):
Studentactivism.net:

"SCotUS has been filled from the ranks of the traditional (anglo) elite, leavened since circa 1900 with politically ambitious Irish and high-performing Jews. That no hispanics have been appointed has little to do with bigotry, except perhaps anti-Catholic sentiment."

Seriously? The fact that SCOTUS "has been filled from the ranks of the traditional (anglo) elite, leavened since circa 1900 with politically ambitious Irish and high-performing Jews ... has little to do with bigotry?"

Seriously?


If you are going to try to distort what I wrote by combining two sentences, don't quote the whole original at the same time. You'll never get a job with AP or the Times that way.

That no black was appointed to the Court until 1967 was certainly due to bigotry. A large portion of the Senate was dead against any such appointment, strictly on the basis of race. It is probable that the appointment of a woman to the Court would, until fairly recently, have been opposed by many strictly on the basis of gender. And certainly the opportunities for blacks or women to advance in the law were severely obstructed by prejudice.

It is not clear there was any such deliberate obstruction of hispanics. To begin with, until fairly recently hispanics were a very small portion of the population. A newly arrived element would not instantly become an important presence in American law; that could take decades, with additional decades before lawyers from that element achieved the respected position suitable to a Court appointee. This would also be affected by the group's culture: Jews aggressively pursued the "professions" such as law; the Irish also went into law (and politics) disproportionately.

Hispanics did not. Nor did other "ethnic" whites. (They also arrived later than the Irish, another delaying factor.)

Meanwhile, the same circles which had previously dominated law and politics continued to do so. The upper ranks of the judiciary, and especially the Court, were the last area to be affected.

Two other factors have been in play in the last 40 years: the disappearance of "politicians" from the Court, and Republican dominance of the Presidency. Earl Warren was the last Justice appointed from the political sphere, with the partial exceptions of White, Goldberg, Fortas, and Marsall. Goldberg and Fortas were problematic, and since then Justices have been drawn from the upper ranks of the Federal judiciary, as noted one of the last areas to be affected by ethnic change.

Republicans have held the Presidency for 28 of the last 40 years. Hispanics have politically identified with the Democrats, thus becoming excluded from consideration by Republican Presidents. (Though not entirely so - besides Estrada, Alberto Gonzales was touted as a possible Republican nominee.)

Thus we can see that there were multiple reasons for the absence of hispanics having nothing to do with bigotry.
5.27.2009 8:31pm
studentactivism.net (www):
Rich, you and I are clearly defining the word "bigotry" differently. You seem to believe that unless there is a conscious exclusion of specific qualified individuals from a particular position, then bigotry played no role in the process.

Hispanics weren't "newly arrived" in America in the mid-20th century. They were present in large numbers in the states of the southwest, for instance, at those states' birth. And yet, despite their numbers and their seniority, they were underrepresented in political and economic elites, as -- as you put it -- "the same circles which had previously dominated law and politics continued to do so."

Bigotry wasn't the whole story in this elite domination, but it wasn't absent from that story, either.
5.28.2009 5:09pm
Fury:
miss p:

"I always thought Sotomayor's comment about the wise Latina jurist was an attempt at humor, one of those play-chauvinist boasts as one might make during a commencement address (e.g., "I would hope to see more Cornell alums than Brown alums in the upper echelons of society.")."

I don't know. It reads as though it was not being made in a humorous manner. I don't agree with Judge Sotomayor's assertion, but as has been pointed out elsewhere on VC, for anyone to stake their opposition to Sotomayor on this one speech is foolish.
5.30.2009 7:43am

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Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.