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Initial Thoughts on the Sotomayor Pick:
Two initial thoughts on the Sotomayor pick.

  First, it's not a big surprise: Sotomayor has long been thought to be a possible Supreme Court pick for a Democratic President. Indeed, a quick google search pulls up some of the stories of how GOP Senators tried to slow down her nomination to the Second Circuit in 1997-98 precisely because she would be a logical pick to the Supreme Court someday. For example, here's Neil Lewis in the New York Times on June 13, 1998:
  Judge Sonia Sotomayor seemed like a trouble-free choice when President Clinton nominated her to an appeals court post a year ago. Hers was an appealing story: a child from the Bronx housing projects who went on to graduate summa cum laude from Princeton and become editor of the Yale Law Journal and then a Federal prosecutor.
  Moreover, she had been a trial judge since 1992, when she was named to the bench by the last Republican president, George Bush.
  But Republican senators have been blocking Judge Sotomayor's elevation to the appeals court for a highly unusual reason: to make her less likely to be picked by Mr. Clinton for the Supreme Court, senior Republican Congressional aides said in interviews.
(To be clear, both parties play this game when they smell a potential SCOTUS nominee; I point out the 1998 story just to point out that Sotomayor was always known as a possible pick.)

  Second, at this point I would think Sotomayor is very likely to be confirmed. I don't know a ton about Sotomayor, but her resume hints at someone who is sort of like a liberal mirror image of Samuel Alito: the humble kid who goes to Princeton and Yale Law, becomes a prosecutor, and then gets appointed at a young age to the federal bench and puts in 15 years as a respected (if not particularly high profile) federal judge. In some ways, that makes Sotomayor a pretty conservative pick: Her resume is the kind of very accomplished resume that Supreme Court picks have tended to have in the last two decades or so. Given the make-up of the Senate, and the absence of surprise, I would imagine at this point that Sotomayor is very likely to be confirmed.
Terrivus:
As a conservative lawyer, I'm fine with this pick. As far as appellate judges go, Sotomayor is generally undistinguished. She's a political pick designed to appeal to an interest group. Obama has 59, practically 60 seats in the Senate, and he could have named a strong, dynamic liberal who would have been a game-changer (even if only taking Souter's seat). He didn't.

Sotomayor was the safe choice: Hispanic, female, compelling life story, and few controversial decisions. She's a reliably liberal vote who doesn't move the ball in any significant way. There could have been much stronger picks (Kathleen Sullivan, Pam Karlan, even Diane Wood), but Obama, ever the politican, made a political decision.
5.26.2009 11:03am
merevaudevillian:
Interestingly, Senator McCain voted against her nomination in 1998.
5.26.2009 11:09am
Oren:
Terrivus is right.

Now, if RBG retires (or goes to the appellate court in the sky), Obama might chose a more full-bore liberal, but that's another day.
5.26.2009 11:16am
cboldt (mail):
-- Interestingly, Senator McCain voted against her nomination in 1998. --
.
28 or 29 NAY votes, depending on whether one chooses the Congressional Record of Oct 2, 1998, or the Senate Vote tabulator. Senator Nickles is recorded as casting an AYE vote in the Congressional Record, but a NAY vote in Senate Roll Call Vote No. 295.
5.26.2009 11:22am
Bretzky (mail):
Unless Sotomayor turns out to be the Zodiac Killer, I'm pretty sure that she'll get confirmed. My prediction on the vote is 68 for and 32 against. Even if the Democrats didn't have 60 votes in the Senate, there still wouldn't be a filibuster because (1) Republicans would look like total hypocrites if they did it and (2) there are enough Republicans in the Senate (Collins, Snowe, Graham, McCain, etc.) who would vote for cloture in order to overcome their party's self-destructive impulse anyway.

I'm neither impressed nor disheartened by Obama's selection of Sotomayor. By all accounts she's a qualified Supreme Court pick, but she's not someone who's going to set out on a trail of her own (kind of like the justice she's going to replace). Furthermore, she doesn't appear to be a judge outside of standard left-wing politics, so she's not likely to change the Court's dynamic.

On a different note, I do like the fact that Obama selected someone in their mid-50s to replace Souter. I personally think that no one below 60 should be selected but at least he didn't go for someone in their 40s. Of course, I would like to see a 16-year limit on Supreme Court service regardless.
5.26.2009 11:23am
Googler:
Sullivan or Karlan will never be appointed. As left wing lesbians, they would become the recruiting posters for the right and even moderately conservative Democrats (such as Ben Nelson0 would find it impossible to support them.
5.26.2009 11:24am
martinned (mail) (www):
@cboldt: That's strange. Does that sort of thing happen a lot? One would think that Congress should be able to keep track of how everybody votes, and that they should be duly motivated to do so. (Given how badly people can occasionally get butchered for casting the "wrong" vote.)
5.26.2009 11:25am
MAM:
I would have preferred someone like Cheryl Cashin at G'Town as a shining liberal light or a Janet Napolitano. Sotomayor does not, I believe, excite many liberals.

That probably means she was a very safe pick.
5.26.2009 11:29am
Terrivus:
Now, if RBG retires (or goes to the appellate court in the sky), Obama might chose a more full-bore liberal, but that's another day.

But that's what's most interesting to me about this pick. Obama used a "safe" pick at a point when he could have named just about anyone and still gotten confirmation. He's got 59 votes in the Senate (practically 60), he's still in his honeymoon period, and he's got a ton of political capital. He would have won any fight the GOP tried to pick, even if the GOP had a solid basis for its opposition.

But there are no promises the same circumstances will exist for his next pick. He may have fewer Senate seats; Senate Dems will probably have started standing up to him some more; and he'll almost certainly have less capital, barring a significant economic turnaround. At that point he still could have nominated Sotomayor and gotten confirmation--even for a conservative seat. But not a more dynamic, game-changing liberal. So why not nominate one of them now, and save her for later? He could have swung for the fences, but instead opted for bunt.

(A similar situation occurred under Reagan, as explained by Jan Crawford Greenburg--nominating Scalia when the Senate was safely in GOP hands, and Bork when the landscape was much tougher. Greenburg posits that Reagan should have reversed the two, and Bork probably would have been confirmed.)
5.26.2009 11:30am
cboldt (mail):
-- That's strange. Does that sort of thing [internal inconsistency in Congressional Record] happen a lot? --
.
It's not unusual, but it isn't common. I looked for Nickles announcing a change in vote (this is quite common), but found none. I take those sorts of anomalies between different parts of the formal record as curiosities, and chalk them up to an individual politician seeking to preserve being on both sides of certain issues.
5.26.2009 11:36am
Oren:
Terrivus, I don't see any conservative seats coming up soon. RBG and JPS are next in line.

More importantly, I think Greenburg is exactly wrong about that dynamic would play out in this decade -- if he nominated a full-bore-liberal now, the GOP would have the credible claim that he's changing the balance of the court to the left (which he is with SS, but to a lesser extent -- they are both center-left).

If RBG retires and he replaces her with a FBL, then the GOP is robbed of that talking point. RBG is as far left as any potential nominee.

PS. I'll put good money on another retirement before the midterms. Any takers? I'll give you 3:2 in your favor.
5.26.2009 11:39am
A. Little Knowledge:

(A similar situation occurred under Reagan, as explained by Jan Crawford Greenburg--nominating Scalia when the Senate was safely in GOP hands, and Bork when the landscape was much tougher. Greenburg posits that Reagan should have reversed the two, and Bork probably would have been confirmed.)

I'll bet Bork would have been easily confirmed in 1981 had he been nominated then. Instead, Reagan made a quota appointment---and we all know how THAT turned out. Interesting that Reagan and Obama saw fit to use their initial SCT appointments, first and foremost, to fill quotas.
5.26.2009 11:45am
ruuffles (mail) (www):

I'll bet Bork would have been easily confirmed in 1981 had he been nominated then.

He was only nominated to the DC Circuit in Dec 1981, while O'Connor was nominated to SC in July 1981. Before that, his experience was in the Nixon administration and the Saturday night massacre, with no judicial experience. Would that have been enough to win confirmation?
5.26.2009 11:53am
M N Ralph:
Good analysis Professor Kerr, but I think it omits one crucial point. She's Hispanic, she'll be the first Hispanic justice (or at least be seen as the first), and Hispanics are a fast growing and crucial electoral demographic. Republicans have a major problem with Hispanics, losing massive amounts of their support from 2004 to 2008. Establishment Republicans want to get back some of that lost Hispanic support. They just cannot politically afford to be seen as blocking her nomination. Many of the same considerations apply with her also being a woman, but just not as forcefully. Right or wrong, that is the politics of the situation and thus she should get confirmed. The only possible way she gets derailed IMHO is if enough Democrats join with Republicans to give them the political cover they need to oppose the nomination. I don't think that happens.
5.26.2009 11:54am
M N Ralph:

but Obama, ever the politican, made a political decision.


Agreed. And, it's an excellent decision, politically speaking. The smart Republican play would probably be to hold their fire and save it for the next nominee. But, I don't think the base will be satisfied with that. So, they'll suffer some of the political damage from their activists, commentators, and most conservative Senators attempting to torpedo the nomination, while she still gets confirmed.
5.26.2009 11:57am
M N Ralph:

Now, if RBG retires (or goes to the appellate court in the sky), Obama might chose a more full-bore liberal, but that's another day.



If Ginsburg's slot opens up, it will almost certainly be another woman Obama nominates to replace her. Kagan is the clear choice.
5.26.2009 11:59am
M N Ralph:

So why not nominate one of them now, and save her for later? He could have swung for the fences, but instead opted for bunt.



Obama runs for re-election in 2012. Hispanics are the fastest growing ethnic demographic in the US. Sotomayor is Hispanic. She's the best choice politically.
5.26.2009 12:03pm
M N Ralph:
One other possiblility--Obama truly wants someone from a less privileged background than most Supreme Court justices and Sotomayor definitely fits the bill.
5.26.2009 12:05pm
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 12:05pm
M N Ralph:

PS. I'll put good money on another retirement before the midterms. Any takers? I'll give you 3:2 in your favor.


Not me. I think RBG retires in 2010 or 2011. Just from my impression of her, she is committed to preventing a sharp rightward turn in the court and I don't think she would be willing to take a chance on Obama losing in 2012. She'd then have to stick it out for at least another four years. With her medical problems, a retirement while there's a progressive president seems like the obvious move. I'd bet Souter and Ginsburg even talked about and agreed on which one wanted to retire first. Stevens seems like he likes the job and is less committed to having a Democrat replace him and preserve the current court balance.
5.26.2009 12:12pm
rick.felt:
He would have won any fight the GOP tried to pick, even if the GOP had a solid basis for its opposition.

I tend to agree with this assessment. Obama could have gotten a bomb-thrower through, but he went "safe." He certainly has enough capital to do whatever he wants right now.

But it's called "political capital" for a reason: it can be spent. Obama's political capital stock is large but finite, and he's got other stuff that he wants to accomplish. If he's serious about some sort of national health insurance program, he's going to have to spend a significant amount to do it. If he's serious about any spending plans that maintain or increase the deficit, he's going to need more political capital. So yes, in a fight with the GOP at this point, he'll win. But he'll burn capital in the process, and he might need that later.

I also wonder if Obama though that he needed an easy win. Maybe he's starting to worry about an erosion of his political capital and wants to stop it. The torture debate has backfired on the Democrats, and while Obama hasn't been directly hurt by it, Pelosi has. Even some liberals are starting to notice that Obama has been getting outflanked by the GOP on the budget debate. All in all, it hasn't been a really good couple of weeks for the Democrats. These aren't big problems for Obama, but they certainly don't help. Maybe Obama thought that he needed an easy win to keep these minor setbacks from growing into major problems.
5.26.2009 12:15pm
Cato The Elder (mail):
M N Ralph, how does Sotomayor bridge the different perspectives between those lucky enough to be born with hetero-normative and ableist privilege and those who do not?

I am very concerned about these issues.
5.26.2009 12:23pm
John Thacker (mail):
Moreover, she had been a trial judge since 1992, when she was named to the bench by the last Republican president, George Bush.


Just noting that this point is not as relevant as it sounds. She was named as part of a deal between Bush, D'Amato, and Moynihan. A large number of New York seats had been vacant thanks to the blue slip policy. Once there were seven seats, there were enough seats for a compromise agreement to be made whereby everybody got to pick a few judges. She was one of Moynihan's picks.

I suppose it puts some sort of bound on her, but not all that much.
5.26.2009 12:27pm
wooga:
I cannot believe that people are openly arguing about the ethnicity and gender of a Supreme Court nominee. Is it a "good thing" Obama didn't pick a white dude? Would a Slavic Jew have given you the vapors? Has the Democratic party returned to its vile racist and sexist past?

It certainly seems so. Can you people ever judge someone first and foremost by the content of their character? Why are you so fixated on behaving like 18th century bigots?
5.26.2009 12:31pm
martinned (mail) (www):
@wooga: Presumably because, unlike the Chief seems to think, merely ignoring such matters does not make them go away. Also, it is the most "visible" thing to focus on, absent any objectionable opinions. (The speech that so many Conspirators seem to object to is also about ethnicity/race, so that doesn't help.)
5.26.2009 12:34pm
martinned (mail) (www):
P.S. Not to mention that one of the more notable cases that Sotomayor was involved in, the New Haven Fire Department case, was also about race. So if we're not supposed to talk about race, what is left?
5.26.2009 12:35pm
Anon321:
If you haven't seen it, this profile of Sotomayor from 1992, when she was appointed to the SDNY, has some interesting tidbits, including:


She moved because Carroll Gardens is not in her judicial district. The courthouse is in Manhattan, but even on a judicial salary of $129,000 -- modest compared with the potential earnings of a law partner -- Ms. Sotomayor has chosen moderation, and a longer commute from the Bronx, which is also in her district.

"I've never wanted to get adjusted to my income because I knew I wanted to go back to public service," she said. "And in comparison to what my mother earns and how I was raised, it's not modest at all." She paused, as if watching a slide show of memories, and laughed heartily. "I have no right to complain," she said.

. . . .

John W. Fried, her bureau chief when she was a prosecutor, attests to Ms. Sotomayor's decision-making capacity, noting how she would scrupulously search for her own reasonable doubt before going forward with a case. Mr. Fried, now in private practice, said she "was the brightest, most eager assistant I ever worked with."

. . . .

When Justice Clarence Thomas was introduced at a Second Judicial Circuit conference, was she among those who sat on her hands rather than give him a standing ovation?

"I'll take the Fifth," she said.

. . . .

Ms. Sotomayor, who is divorced, said that becoming a judge is like joining a monastery. So she plans to spend this weekend before her swearing-in with friends in New Orleans, the last such fling for a while.

Rocking out, your honor-to-be?

"Yeah," she said, with a smile and a shrug, "I party."


I think that last quote won me over.
5.26.2009 12:38pm
Bob from Ohio (mail):
Catholic by birth, double Ivy, court of appeals.

Yawn.

A non-entity like Souter and Alito. Someone who will serve time and leave no mark.
5.26.2009 12:39pm
ruuffles (mail) (www):

Just noting that this point is not as relevant as it sounds. She was named as part of a deal between Bush, D'Amato, and Moynihan. A large number of New York seats had been vacant thanks to the blue slip policy. Once there were seven seats, there were enough seats for a compromise agreement to be made whereby everybody got to pick a few judges. She was one of Moynihan's picks.

I find it hard to be believe that Bush didn't have some veto power over the choices. Obviously Moynihan would choose more to the left but would Bush have approved of a judge like some of those on the 9th? But then again, these were district judges, not appeal.
5.26.2009 12:43pm
Hank Gillette:
Just who is that killer liberal pick that Obama would have to spend political capital on? It's been reported for weeks that Kagan, Woods, and Sotomayor were the leading candidates, and all of them seem confirmable.

Of the three, is Sotomayor really that safe of a pick? It was just a week or two ago that there were rumors all over the blogosphere (including here) about how she isn't that smart, does not have the proper judicial temperament, and had torpedoed her chances with the remarks about the "court of appeals is where policy is made".

Just a day or two ago, it seemed that the "smart money" was on either Kagan or Woods as being the likely nominee. Assuming that these three were the final choices, it appears to me that Obama picked the most difficult candidate to get confirmed (I agree that barring something we don't know now, she will be confirmed).
5.26.2009 12:47pm
OrinKerr:
Wooga,

In 2005, Republican President George W. Bush selected Harriet Myers for the Supreme Court largely because he wanted to pick a woman, even though Miers had no experience as a judge and no real experience in areas relevant to the Supreme Court. The GOP White House then tried to sell the Miers nomination on the ground that she was the first woman to achieve what she did, even going so far as to suggest that people who opposed her were being sexist and opposing Miers because of her gender.

Given that recent history, isn't it sort of odd to suggest that the emphasis on race and gender in an internet comment thread concerning the next female nominee somehow echoes "the vile racist and sexist past" of the Democratic Party? Isn't it significantly less offensive than what the most recent Republican President did just 4 years ago?
5.26.2009 12:50pm
David M. Nieporent (www):
It was just a week or two ago that there were rumors all over the blogosphere (including here) about how she isn't that smart, does not have the proper judicial temperament, and had torpedoed her chances with the remarks about the "court of appeals is where policy is made".
I suppose by "rumors all over the blogosphere," you mean, "A Jeffrey Rosen column in the New Republic."
5.26.2009 12:55pm
M N Ralph:

M N Ralph, how does Sotomayor bridge the different perspectives between those lucky enough to be born with hetero-normative and ableist privilege and those who do not?


I'd first have to understand your question before I could hope to answer it.
5.26.2009 12:57pm
Hank Gillette:

I suppose by "rumors all over the blogosphere," you mean, "A Jeffrey Rosen column in the New Republic."


That is where it started, but there were plenty of people elsewhere (including here) who were happy to take the meme and run with it.
5.26.2009 1:09pm
rick.felt:
OrinKerr:

Given that recent history, isn't it sort of odd to suggest that the emphasis on race and gender in an internet comment thread concerning the next female nominee somehow echoes "the vile racist and sexist past" of the Democratic Party?

If you go back through the comments here at the time of Miers' nomination, you won't find the conservative rank and file "suggest[ing] that people who opposed her were being sexist and opposing Miers because of her gender." I agree that the White House did it, but that was a stubborn, desperate attempt push back against legitimate criticism that Miers was unqualified. The White House had no other arguments, because, well, Miers was unqualified. The rank and file didn't buy the White House's ludicrous gender-card-playing for a second.

Contrast that with the use of the race/gender card by liberals with the Sotomayor pick: it's pretty much the first place they go, almost reflexively. Liberals treat it as a serious argument, whereas conservatives saw through the White House's attempt to play it with Miers.
5.26.2009 1:11pm
martinned (mail) (www):

Contrast that with the use of the race/gender card by liberals with the Sotomayor pick: it's pretty much the first place they go

Cite?
5.26.2009 1:24pm
ArthurKirkland:
Doesn't history suggest that the overwhelming reflex has been toward white males, with a recent tilt toward a Catholic white male? Lack of diversity is a serious argument, unless one is daft enough to believe that white males have deserved the probability-defying advantage they have enjoyed in almost all elements of America's public life.

This nominee will be familiar with aspects of American life that a fellow like John Roberts probably couldn't imagine, even were he inclined to try.

Judge Sotomayor has climbed far more of the rungs of life's ladder than has someone born to privilege. I wonder what would have become of some prominent public officials had they been born to outsider parents in difficult circumstances instead of having been able to coast for some time on their parents' skin color, wealth and social standing. We don't know what would have become of Ted Kennedy, George W. Bush, John Roberts or Jay Rockefeller had they been born at an 0-2 count. Perhaps they would have, like Judge Sotomayor or Justice Thomas, overcome the disadvantages. Or, and I think more probable, they would have been more likely angling for a promotion at Wendy's than ascending to prominent government positions.

Reflexively choosing white males, as our society has done throughout its history, strikes me as every bit as race- and gender-conscious as the occasional different choice has been.
5.26.2009 1:28pm
PaulTX (mail) (www):
Obama could have picked a left-wing Scalia. He didn't. So from a conservative perspective, this is as good as it's going to get.

Republicans on the Judiciary Committee should subject Sotomayor to camera-suitable grilling -- Does she also think that Hispanic women make for better judges than black men? -- and then report her out for confirmation.
5.26.2009 1:45pm
martinned (mail) (www):
@rick.felt: I'll have to take a look at the tnr cite, but to the extent that democrats have supported Sotomayor's nomination on race or sex grounds, this has mostly been in response to attacks Re. Judge Sotomayor's speech.
5.26.2009 1:56pm
martinned (mail) (www):
Correction: " to the extent that democrats have supported Sotomayor's nomination on race or sex grounds here on Volokh, this has mostly been in response to attacks Re. Judge Sotomayor's speech."
5.26.2009 1:57pm
A. Little Knowledge:

at this point I would think Sotomayor is very likely to be confirmed. I don't know a ton about Sotomayor, but her resume hints at someone who is sort of like a liberal mirror image of Samuel Alito: the humble kid who goes to Princeton and Yale Law

I'm guessing that Alito's credentials are not subject to question. That is, I'm guessing that his admission to college and law school was not the result of race and sex quotas. Can the same be said of Sotomayor? Perhaps that question ought to be fair game for the confirmation hearings. Wanna bet that no one has the testicular fortitude to ask????
5.26.2009 2:05pm
rick.felt:
martinned:

" to the extent that democrats have supported Sotomayor's nomination on race or sex grounds here on Volokh, this has mostly been in response to attacks Re. Judge Sotomayor's speech."

As you would say, "cite?"
5.26.2009 2:09pm
RPT (mail):
The appeal of the Horatio Alger story is now a disadvantage to conservatives. Those who achieve based on merit, without the class and family advantages of such as Roberts, is now deemed a negative. Alito's embrace of his Italian background and identity and his grandparents' immigration from Italy was treated as a good thing. But that was then.
5.26.2009 2:17pm
Sarcastro (www):
A. Little Knowledge is right. My Latin is a bit rusty, but I think summa cum laude means "unremarkable."
5.26.2009 2:22pm
martinned (mail) (www):
@rick.felt: The initial posts made by the conspirators reflecting on this nomination mostly mentioned her ethnicity alone (like this one by David Bernstein and this one by Ilya Somin) or mention her ethnicity and the speech she gave (like this one by Ilya Somin). In such a case, it is logical that the thread will focus on this aspect as well (it is quite salient), and that Dems will defend her on the grounds that diversity on the court is a good thing. As far as I can see, no one has brought it up as a defence of the nominee generally. More recent posts, such as this one by David Kopel, have focused on specific aspects of her jurisprudence, which seems like a more interesting topic, albeit one that understandibly takes a bit more time on the part of the poster.

In other words, if ethnicity or sex comes up, one would expect Dems to support diversity. After all, they're Dems. But that does not mean that anyone is taking refuge in such arguments because there are no better reasons for backing this nominee.
5.26.2009 2:24pm
rick.felt:
But that does not mean that anyone is taking refuge in such arguments because there are no better reasons for backing this nominee.

I don't think that the use of the race/gender card amounts to "taking refuge" in those arguments because Sotomayor is otherwise unqualified. She's definitely qualified. That's what makes the instant, reflexive playing of the race card so weird: it's unnecessary. She's qualified for the Court based on her experience.

As for your cites, Bernstein was responding to someone who had made Sotomayor's status as a member of the Coalition of the Oppressed(tm) an argument in her favor. The left is indeed playing the race/gender card right out of the gate.
5.26.2009 2:41pm
Bob from Ohio (mail):

We don't know what would have become of Ted Kennedy, George W. Bush, John Roberts or Jay Rockefeller had they been born at an 0-2 count. Perhaps they would have, like Judge Sotomayor or Justice Thomas, overcome the disadvantages. Or, and I think more probable, they would have been more likely angling for a promotion at Wendy's than ascending to prominent government positions.



Those who achieve based on merit, without the class and family advantages of such as Roberts, is now deemed a negative.


What;'s with the John Roberts hate?

John Roberts had a middle class background. He was not born wealthy.


Roberts' father, a Bethelehem Steel engineer, moved his family from New York to Indiana for a job transfer when John was in 2nd grade. Roberts attended the last 3 years of high school at LaLumiere, an exclusive Catholic boarding school where he played sports and participated in choir and drama programs. An excellent student, he graduated atop his 25-member class.Their family was happy and tight-knit, and he remains very close to his 3 sisters.


He was an outstanding student.


Education - BA (in 3 years) in History from Harvard University in 1976; JD from Harvard Law School in 1979, where he was managing editor of the Harvard Law Review.


The guy was an outstanding litigator. If I recall correctly, he argued a Supreme Court case on a Friday, was drafted for a DC Circuit argument for Monday. Won both.

He is rich now because he made a ton of money in private practice. Several tons actually. Because he was a top 3 S/C litigator.

His background was not as poor as Sotomayor's but hardly a Kennedy or a Rockefeller.
5.26.2009 2:53pm
Desiderius:
Bob from Ohio,

"What's with the John Roberts hate?"

He doesn't fit the narrative. Hard to have a good struggle between the haves and the have nots when you've got a bunch of have somes gumming up the works.
5.26.2009 3:16pm
RPT (mail):
John Roberts:

"Roberts was born in Buffalo on January 27, 1955, and raised in northern Indiana, where his father was an executive with a steel company and his mother a homemaker. (He has three sisters.) Jackie, as he was known, was educated at Catholic schools, and graduated from La Lumiere, at the time an all-boys parochial boarding school in LaPorte. He was the classic well-rounded star student—valedictorian and captain of the football team. He went on to Harvard, majored in history, and graduated in three years, summa cum laude."

There is no "hate" for Roberts, but let's stick to the facts. His executive father was able to provide JR with a private boarding school education and then Harvard. This does not equate to SS's single mother working two jobs living in the projects in Queens.
5.26.2009 3:22pm
wooga:

In 2005, Republican President George W. Bush selected Harriet Myers for the Supreme Court largely because he wanted to pick a woman, even though Miers had no experience as a judge and no real experience in areas relevant to the Supreme Court.
...
Given that recent history, isn't it sort of odd to suggest that the emphasis on race and gender in an internet comment thread concerning the next female nominee somehow echoes "the vile racist and sexist past" of the Democratic Party? Isn't it significantly less offensive than what the most recent Republican President did just 4 years ago?

OrinKerr,
Well that's just a tu quoque fallacy. Besides, the conservatives roundly criticized Bush for his gender politics, and I can't think of anyone who holds up that sort of behavior by Bush as something worth emulating. So no, it is not odd to call out the Democrats on their open (and enthusiastic) racism, sexism, and all round bigotry. Implicit in the Democratic argument that women and latinas deserve some 'leg up' is that they are somehow inferior in the first place to white males. It's insulting. Witness the "she was born 0-2" comments.
5.26.2009 3:26pm
Magic Dog (mail):
I?m very happy that President Obama picked Sotomayor for the Supreme Court.

She's definitely a liberal, and she's only 54 years old. Those two things will drive the wingnuts absolutely crazy. Then there's what the nutcases call "identity politics," i.e., that she's Hispanic and female, which means that there's absolutely no way the Republicans are going to be able to defeat her nomination.

On "principle" the wingnuts are going to be going after her tooth and claw. Limbaugh has already wished for her to fail. Given that the off-year primaries are approaching, the Republicans in the Senate are going to have to try to slime her, the cruder the better.

The end result: The Republicans will lose twice, first for being the ever-hating racist, sexist jerks we know they are, and second because Sotomayor isgoing to be confirmed anyway. And you think liberals disapprove of torture? Think again! The right wing is going to twist slowly in the wind, moanin' and a-groanin' as the vultures peck out their eyes.

And we humane liberals will stand there laughing. It's all so unfair. So terribly, terribly unfair!
5.26.2009 3:49pm
glangston (mail):
Magic Dog (mail):
I?m very happy that President Obama picked Sotomayor for the Supreme Court.

She's definitely a liberal, and she's only 54 years old. Those two things will drive the wingnuts absolutely crazy. Then there's what the nutcases call "identity politics," i.e., that she's Hispanic and female, which means that there's absolutely no way the Republicans are going to be able to defeat her nomination.

On "principle" the wingnuts are going to be going after her tooth and claw. Limbaugh has already wished for her to fail. Given that the off-year primaries are approaching, the Republicans in the Senate are going to have to try to slime her, the cruder the better.

The end result: The Republicans will lose twice, first for being the ever-hating racist, sexist jerks we know they are, and second because Sotomayor isgoing to be confirmed anyway. And you think liberals disapprove of torture? Think again! The right wing is going to twist slowly in the wind, moanin' and a-groanin' as the vultures peck out their eyes.

And we humane liberals will stand there laughing. It's all so unfair. So terribly, terribly unfair!



Sarcastro?
5.26.2009 4:22pm
Bob from Ohio (mail):

His executive father was able to provide JR with a private boarding school education and then Harvard. This does not equate to SS's single mother working two jobs living in the projects in Queens.


So, is it your position that she is morally his superior? He achieved based on his "class advantages" but she strictly on "merit". Maybe he achieved on "merit" too?

Where's the line? How poor do you have to be to qualify for "merit"?
5.26.2009 4:23pm
Magic Dog (mail):
By the way, it IS identity politics, and there isn't a single damn thing the wingnuts can do about it except watch it happen and watch themselves be made fools of.
5.26.2009 4:37pm
rick.felt:
By the way, it IS identity politics, and there isn't a single damn thing the wingnuts can do about it except watch it happen and watch themselves be made fools of.

My hope is that no one feeds the troll.
5.26.2009 4:49pm
RPT (mail):
"BFO:

So, is it your position that she is morally his superior? He achieved based on his "class advantages" but she strictly on "merit". Maybe he achieved on "merit" too?"

Yes, I certainly believe that Sotomayor had to work harder to get where she is then Roberts or Alito did. She started in the dugout, not first base, to paraphrase a common GWB metaphor ("born on third base and thought he hit a triple"). Some believe that adversity builds character. I do. You may not. This doesn't denigrate Roberts, but it does reflect the radically different reality in which they competed.

I also believe that trial experience is good, both as a lawyer and a judge. In this regard, she is ahead of both Roberts and Alito and can have a broader and better perspective on the process. If the Princeton MCL and Yale Law Journal is not enough, then there must be some other explanation. Mine is that the opposition to her is almost entirely race and gender based.
5.26.2009 4:50pm
Bored Lawyer:
1. The idea that working hard to overcome disadvantage should be admired is as old as Hortio Algier, and not to be denigrated.

I once saw a good analogy. In certain Olympic sports (ice skating, gymnastics, diving) one is graded not only on the perfection of one's performanc but also on the degree of difficulty of the routine. A flawless but very easy performance might earn less points than a difficult routine done well with minor flaws. IMO, degree of difficulty is a legitimate factor to take into account.

2. Some posters here seem to think that race somehow equates with (1). It doesn't -- there are plenty of disadvantaged whites, and plenty of minorities with equal advantages to most whites.

Would these posters be willing to give the same affirmative action advantages to a white male who worked his way up from poor beginnings to Harvard Law School? Or are they to be satisfied by the claim that "one of them" has already reached the same heights.

3. As I said in a prior post, Sotamayor has some impressive achievements and certainly appears qualified to be nominated to the position, at last on paper. But there are probably at least several hundred others with equal or better qualifications. In other words, she is qualified, but not the best qualified and certtainly not brilliant or an intellectual force.

From Obama's POV, the best qualified would be a liberal equivalent of Scalia -- not only a safe liberal vote, but a liberal intellectual who would lay the foundation for a liberal intellectual force. That has been sacrificed in the name of identity politics -- you get someone who is qualified but not brilliant, but at least she is a Latina.

Conservatives ought to be happy -- the liberals have been hoisted on their own petard.

4. Diversity may be a value, but it is curious that only racial diversity seems to be valued. No doubt Sotamayor has had different life experiences than the "rich white guys" on the Court. But in the end she is a product of Princeton and Yale -- hardly unique for that institution. Any reason why socio-economic or geographic diversity are less valuable than racial diversity?
5.26.2009 6:27pm
Bored Lawyer:

Mine is that the opposition to her is almost entirely race and gender based.


What is the basis for this assertion? Suppose Sotamayor were a solid conservative -- a Latina Janice Roberts Brown -- do you think that anyone on the right would oppose her? (NOt that Obama would nominate such a person.)

The truth is that the opposition is primarily to what is perceived as her liberal ideology. Unfortunately, we have a liberal President and a Democratic controlled Senate, so for the most part that cannot be helped.

What is being pointed out, and fairly, is that her selection is owed to her gender and race. If she were a white male with the same ideology, she would have had zero chance of being picked. Zero. That says more about where we are today in politics than about her, but if her nomination and confirmation are opportunities to point that out, so be it.
5.26.2009 6:32pm
Bored Lawyer:
Correction: Last post should have read "a Latina Janice Rogers Brown." Middle name is Rogers, not Roberts.
5.26.2009 6:36pm
A. Little Knowledge:

A. Little Knowledge is right. My Latin is a bit rusty, but I think summa cum laude means "unremarkable."

Just as admissions requirements can be jiggered to get the "preferred" in the door, so can grades to get them out.

Quota admittees are easily enough made quota graduates.
5.26.2009 7:02pm
Sarcastro (www):
A. Little Knowledge points out why I, for one, assume all minorities secretly suck at what they do.
5.26.2009 7:19pm
wooga:

Yes, I certainly believe that Sotomayor had to work harder to get where she is then Roberts or Alito did.

Would you say Obama had to work harder to get where he was than Clinton?

Anybody who "got where they are" during the 90s or later knows the score. The more identity check marks on your card, the dumber and lazier you are allowed to be. Try being a Caucasian Jewish male (I am not one) seeking a law school professor job, especially when you are competing against a highly functioning retarded lady who happens to be a lesbian Inuit or something. Game over, the jewish guy loses. After all, there are already enough jewish points of view in the law, we need more retarded lesbian Inuits.

Of course, Sotomayor and Roberts established themselves well BEFORE the 90s, so your point may still be right. Just don't expect to be able to play "minority overcoming adversity" card past 2020.
5.26.2009 8:29pm
Magic Dog (mail):
Hey wingers! Have a look at TX. There's going to be a special election when Hutchinson runs for gov. Now wouldn't that be an ass-kick if the 60th Democratic senator is a Texan, elected because the Republicans just couldn't restrain themselves on the Sotamayor nomination?

And in the same neighborhood there is Arizona, where McJerk is up for re-election in 2010. He voted against Sotamayor twice, and Kyl is a raving lunatic, so this ought be interesting in the Chinese sense of the word of you're a Republican.

This is an I.Q. test for the Republicans. If they have any brains left, they swallow their pride and say nice things and vote to confirm. But as I look at them, I see a bunch of people being led over the cliff by the likes of Limbaugh and the 10% of the electorate that shows up for primaries.

You are chained to a rock, and a vulture is eating out your liver. Twenty yards away, the Democrats are having a picnic. Wine, cheese, and dijon mustard, natch. O! The horror!
5.26.2009 8:30pm
Magic Dog (mail):
p.s.: Go, Rush, Go!!
5.26.2009 8:39pm
skyywise (mail):
OK, you got a nod due to this post in The Politico:

http://www.politico.com/news/stories/0509/22988.html
5.26.2009 9:14pm
Nick056:

Just as admissions requirements can be jiggered to get the "preferred" in the door, so can grades to get them out.

Quota admittees are easily enough made quota graduates


This is a perfect example of why so many liberals reflexively support extremely successful (and yes, also liberal) minority achievers, and further, specifically celebrate their minority status. That focus on race is seen as a proper and necessary posture because people like A. Little Knowledge are willing to summarily doubt or denigrate the achievements of a successful minority candidate simply because she is a minority.

A. Little Knowledge may dispute that characterization of his remarks. Then again, he may dispute as many other obvious truths as he would like. Bald assumptions that superlative grades were basically falsified for a Hispanic woman is an attack on someone based on her race.

I'd like to see that stop; I'm sure most commenters here would. But I also hope we can agree that until it does, in the face of it, a specific celebration of minority accomplishment is warranted. (Some may argue that such well-intentioned celebration leads to a system of affirmative action in which the success stories are constructed rather than honored -- but I see no real evidence of this in Sotormayor's case, and yet I see serious questions as to the whether her success is authentic.)

I also think Orin got it exactly right re: Miers, and I'd note that conservatives may have opposed her nomination for many reasons, but they did not attack Bush for baldface gender politicking in the way they level those charges at Democrats.
5.26.2009 10:26pm
Nick056:
To belabor the point, Wooga writes:


Anybody who "got where they are" during the 90s or later knows the score. The more identity check marks on your card, the dumber and lazier you are allowed to be ...


Wooga is suggesting that, on average, people with more "identity check marks" will be dumber and lazier than their non-check mark counterparts in comparable positions. Given the permissive attitide toward minority dumbness and laziness that Wooga imagines, what else could be the inevitable result but more dumb and lazy minorities in prestige schools or prestige positions?

I think all the commenters here good-naturedly concerned about the left-wing focus on identity ought to look at Wooga's post. It contains blanket assumption that the advancement system we apparently have will lead to the en masse promotion and acceptance of dumb, lazy individuals who happen to be "identity check-mark" minorities, while other qualified people suffer disproportionately. The persistance of this attitude is why people get caught up over identity and discrimination in this country. To "argue openly about ethnicity" and representation is to act like an 18th-century bigot. No mind that the suppression of those very topics was the hallmark of 18th century bigotry.
5.26.2009 10:38pm
wooga:

It contains blanket assumption that the advancement system we apparently have will lead to the en masse promotion and acceptance of dumb, lazy individuals who happen to be "identity check-mark" minorities, while other qualified people suffer disproportionately.


Absolutely correct take on my post. I would much, much prefer a true "color blind, but socio-economic conscious" affirmative action scheme. That way, every minority who graduates from a decent school will be logically viewed as equal to the white graduates. If you want to give credit for overcoming adversity, give credit to true adversity - poverty (i.e., Bill Cosby's kids do not need affirmative action). The racialism of the left in this country is, as Bush managed to say, "the soft bigotry of low expectations."

I do not think there is any measurable difference in the mental capacity of the races/ethnicities. Unfortunately, the racialism of the left is guaranteed to discourage intellectual effort among the minority groups because racialism presumes that minorities are incapable of competing with whites unless they get a 'handicap.' This inevitably leads to poorer quality output, and a stigma attached to all minorities who honestly earn their achievements.
5.27.2009 8:25pm

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