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New York Times Profile of Sotomayor:

Today's New York Times has a detailed front page article describing Judge Sotomayor's life story. For the most part, the article is a good account of what is indeed an inspiring tale of achievement in the face of considerable disadvantage. Unfortunately, the Times ignores or minimizes most of the problematic aspects of Sotomayor's record. For example, it manages to quote relatively innocuous statements from Sotomayor's 2001 speech, "A Latina Judge's Voice," without mentioning it's most controversial passage: the one where the judge says "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." In fairness, that statement was the focus of an earlier NY Times article by legal reporter Charles Savage, published prior to her appointment. Today's lengthy article also ignores Sotomayor's dubious decisions in important property rights and free speech cases.

However, the Times does reveal one especially damning fact about Sotomayor that I was not previously aware of. It turns out that she is a Yankees fan:

Melissa Murray, who worked for the judge from 2003-4 and is now a law professor at the University of California, Berkeley, recalled going to a Yankees game with Judge Sotomayor. The judge, a Yankees fan, bought tickets in the bleachers, which Ms. Murray said the judge preferred as a more "authentic experience," and she appeared to be known to several in the crowd.

Judge Sotomayor's fondness for the "authentic" bleacher seats at the old Yankee Stadium leads me to wonder whether she approves of the massive public funding for the new Yankee Stadium, which has more luxury boxes but fewer total seats than its predecessor.

martinned (mail) (www):
Yankees = Bronx, so that makes sense.
5.27.2009 4:11pm
martinned (mail) (www):
Update: Barcelona just scored 2-0, with 20 minutes to go. Goal by Lionel Messi.
5.27.2009 4:14pm
Nunzio:
Obama should've appointed a White Sox fan.
5.27.2009 4:21pm
Arkady:

free speech cases


What's your take, Ilya, on her dissent in Pappas v. Giuliani?
5.27.2009 4:26pm
Cardozo'd (www):
As the NYT failed to mention that "controversial" quote, you fail to mention the context of that quote. This section of her speech, given at an event dedicated to Latino jurists, was speaking directly to sex and race discrimination cases. She was merely pointing out that people who experience race and sex discrimination are more likely to understand it. Much like anyone who has experienced something is more likely to better understand it.

But hey, who wants to put "controversial" things in the right context when not doing so serves your partisan talking point.
5.27.2009 4:29pm
Cardozo'd (www):
Oh and as a Mets fan, I agree...being a Yankee fan should be disqualifying.
5.27.2009 4:30pm
Ilya Somin:
As the NYT failed to mention that "controversial" quote, you fail to mention the context of that quote. This section of her speech, given at an event dedicated to Latino jurists, was speaking directly to sex and race discrimination cases. She was merely pointing out that people who experience race and sex discrimination are more likely to understand it. Much like anyone who has experienced something is more likely to better understand it.

This is simply false. The speech clearly suggests that a judge's race and ethnicity should generally influence her jurisprudence, not just in discrimination cases. Nothing in the speech - absolutely nothing - suggests any such limitation. In any event, allowing one's race and ethnicity to influence legal decisions even in discrimination cases is still problematic.
5.27.2009 4:34pm
Ilya Somin:
What's your take, Ilya, on her dissent in Pappas v. Giuliani?

I don't have a strong opinion on it. As a general rule, however, I think that the government should have broad discretion to hire and fire people based in part on their views of the public policy issues that come within the area of responsibility their position covers. Whether racism is relevant to the work of a police official like Pappas who doesn't come into contact with the public is, in my view, a close call.
5.27.2009 4:37pm
Steve:
The speech clearly suggests that a judge's race and ethnicity should generally influence her jurisprudence, not just in discrimination cases.

Uh, no. The speech expressly recognizes that a judge's proper role is to be impartial, while acknowledging that that goal is aspirational.

Acknowledging that one may decide cases differently based upon personal background is an admission of humanity, not an assertion that race and ethnicity SHOULD appropriately influence jurisprudence. I don't think that word "should" can be appropriately implied from her speech.
5.27.2009 4:38pm
Cardozo'd (www):
Now you are stating falsehoods...that quote, the one you mentioned...comes in the paragraph immediately following this sentence, "In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males" - she was talking, in that section of her speech, about race and sexual discrimination cases...to say otherwise is simply distorting the truth and I'm disappointed.

And also she did less of suggesting race and sex should influence jurisprudence, and more of suggesting it does and that really can't be stopped. For instance she said "While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes 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. 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."...also "I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others."

I assume you have read and re-read the speech, so I can't quite understand the misrepresentation. But I guess our middle ground will apparently be Yankee hatred.
5.27.2009 4:43pm
Ilya Somin:
Acknowledging that one may decide cases differently based upon personal background is an admission of humanity, not an assertion that race and ethnicity SHOULD appropriately influence jurisprudence. I don't think that word "should" can be appropriately implied from her speech.

I think the "should" pretty clearly is there in the speech, especially in the quoted line that expresses her hope that a Latina judge would decide cases differently from and better than a white male one. We don't usually "hope" for things that we aspire to get away from. The statement also comes in a passage which criticizes Sandra Day O'Connor's claim that male and female judges should ideally decide a given case the same way.

If Sotomayor merely intended to say that race and ethnicity sometimes effect judicial decisions (without claiming that this is a good thing), there would have been no need for her to dwell on the point at length, since no one denies it.
5.27.2009 4:45pm
Terrivus:
Unfortunately, the Times ignores or minimizes most of the problematic aspects of Sotomayor's record.

Simmer down. The Times always does these "man in the news" (or "woman in the news") stories after a major announcement. They're almost always biography-heavy and full of praise, with only the slightest mention of controversy. The more "serious" journalism takes place in other articles, as your own post acknowledges.

I specifically remember they gave Chief Justice Roberts the same treatment, and it was similarly glowing. Yes, by even the NYT.

So don't get all fired up about this as evidence of some sort of media bias.
5.27.2009 4:45pm
Cardozo'd (www):
Nowhere, is the "should" found. Anyone who read the speech with a non-partisan eye will see that. She says nobody can leave their background behind.

She also was saying a wise latina women should be better than a white male in race and discrimination cases...that limitation is clear if the context of the speech is given, which it isn't here. I suggest everyone go read the speech.
5.27.2009 4:47pm
Ilya Somin:
Now you are stating falsehoods...that quote, the one you mentioned...comes in the paragraph immediately following this sentence, "In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males" - she was talking, in that section of her speech, about race and sexual discrimination cases...to say otherwise is simply distorting the truth and I'm disappointed.

Yes, that paragraph does mention discrimination cases. However, nothing in the paragraph where the statement about "a wise Latina" judge occurs suggests that her supposed superiority is limited to discrimination cases. Nor does anything else in the speech. The fact that discrimination cases are mentioned in passing in another paragraph suggests nothing about the more general meaning of the rest of the speech.

And also she did less of suggesting race and sex should influence jurisprudence, and more of suggesting it does and that really can't be stopped. For instance she said "While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes 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. 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."...also "I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others."

It's true that she says it occurs and can't be stopped. But she also says that it's actually a good thing that should be promoted, as evidenced in her quote about the "wise Latina judge." The two statements are not mutually exclusive.
5.27.2009 4:49pm
RPT (mail):
IS:

Unfortunately, the Times ignores or minimizes most of the problematic aspects of Sotomayor's record."

You have Wendy Long, NRO, and the rest of the conservative movement to do the hit pieces. I hope the hearings contrast the shameless falsehoods raised here and elsewhere with the empathy endorsement offered by Bush I for Thomas and the very heavy ethnic Italian/Catholic push given Scalia and, more recently, Alito.

When can we expect to hear about her connections to Bill Ayers and the Puerto Rico terrorists? Does she has a forged birth certificate? How low will it go?
5.27.2009 4:49pm
Cornellian (mail):
We need fans of other teams, fans of other sports, and non-sport fans on the Supreme Court. How has this lack of sports-fan diversity been overlooked for so long?
5.27.2009 4:51pm
levisbaby:
Well she's "very liberal" and thus likely to reach the wrong conclusions, right?

That is what you said earlier, yes?

If that one sentence conclusion is a valid way of thinking, what else does one need to know about her?
5.27.2009 4:53pm
Steve:
The statement also comes in a passage which criticizes Sandra Day O'Connor's claim that male and female judges should ideally decide a given case the same way.

I don't believe O'Connor said "ideally," nor did Sotomayor challenge the statement on that basis. The question was an empirical one, about whether two wise judges would in fact always come out the same way.

I think the "should" pretty clearly is there in the speech, especially in the quoted line that expresses her hope that a Latina judge would decide cases differently from and better than a white male one. We don't usually "hope" for things that we aspire to get away from.

This is a degree of parsing that borders on the disingenuous. Having candidly admitted that a judge's background is going to enter the equation sometimes no matter how hard they try to be impartial, she simply states that she would hope the differences would lead her to be right more often than not in the cases where it makes a difference. What would you have her say? "There will unavoidably be cases where I would decide differently than a white male judge based on our backgrounds, but I'm going to be right in precisely 50% of the cases where we disagree and so is the other guy"? Come on!
5.27.2009 4:53pm
Daniel Chapman (mail):
Good to see you acknowledge that the NYT is the leftwing equivalent of NRO.
5.27.2009 4:54pm
Cardozo'd (www):
I can't believe the absurdity of this. So you are basing your assertion that wasn't referring to discrimination cases on how it was printed in the NYtimes...ignoring the fact that it came immediately after that statement in print and despite it's spacing in written form was likely uttered seconds after the mention of the discrimination cases. This is amazing to me, how a respected blogger and educator would jump on the lou dobbs and glenn beck train to dumbing down the national conversation, seemingly on purpose.

And if you accept that background influences decision making, wouldn't you then want a wide ranging group of backgrounds...that way you have a wide raning understanding? Makes sense to me....despite her never saying that it should be promoted. She simply said on that specific topic, race and sex discrimination, a person with a background or racial and sexual discrimination would have a better understanding.

This is silly.
5.27.2009 4:57pm
Ilya Somin:
Well she's "very liberal" and thus likely to reach the wrong conclusions, right?

That is what you said earlier, yes?

If that one sentence conclusion is a valid way of thinking, what else does one need to know about her?


Yes, I did say that she is "very liberal." However, I never said that that by itself was sufficient reason to oppose her nomination. And I defended my doubts about her conclusions by analyzing several of her statements and opinions.
5.27.2009 4:57pm
Justin (mail):
Non-liberal Rod Dreher:

Taken in context, the speech was about how the context in which we were raised affects how judges see the world, and that it's unrealistic to pretend otherwise. Yet -- and this is a key point -- she admits that as a jurist, one is obligated to strive for neutrality. It seems to me that Judge Sotomayor in this speech dwelled on the inescapability of social context in shaping the character of a jurist. That doesn't seem to me to be a controversial point, and I am relieved by this passage:

"While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes 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. 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."

Relieved, because it strikes me as both idealistic and realistic. I am sure Sotomayor and I have very different views on the justice, or injustice, of affirmative action, and I'm quite sure that I won't much care for her rulings as a SCOTUS justice on issues that I care about. But seeing her controversial comment in its larger context makes it look a lot less provocative and troubling.
5.27.2009 4:57pm
Ilya Somin:
I can't believe the absurdity of this. So you are basing your assertion that wasn't referring to discrimination cases on how it was printed in the NYtimes...ignoring the fact that it came immediately after that statement in print and despite it's spacing in written form was likely uttered seconds after the mention of the discrimination cases. This is amazing to me, how a respected blogger and educator would jump on the lou dobbs and glenn beck train to dumbing down the national conversation, seemingly on purpose.

I think it's very obvious from the speech as a whole (not form how it was referred to in the NY Times) that her statement was not referring to discrimination cases alone. People will just have to read the speech and judge for themselves.

And if you accept that background influences decision making, wouldn't you then want a wide ranging group of backgrounds...that way you have a wide raning understanding? Makes sense to me....despite her never saying that it should be promoted. She simply said on that specific topic, race and sex discrimination, a person with a background or racial and sexual discrimination would have a better understanding.

Sure, I would want a wide range of backgrounds. But I would also want judges who strive to minimize the influence of race and gender on their decisionmaking rather than endorsing it. That's what my whole objection to Sotomayor was about.
5.27.2009 4:59pm
lawdude:
We don't usually "hope" for things that we aspire to get away from. The statement also comes in a passage which criticizes Sandra Day O'Connor's claim that male and female judges should ideally decide a given case the same way.

This pretty much sums it up. If the meaning were not already clear (and it is, notwithstanding the vigorous reinterpretations offered by commenters on this string), the juxtaposition of her comments against O'Connor's would take away any doubt.
5.27.2009 5:00pm
Cardozo'd (www):
The fact that discrimination cases are mentioned in passing in another paragraph suggests nothing about the more general meaning of the rest of the speech.

And yet, you can take a quote from the speech, take it out of context, a concept only mentioned once in the whole speech, and give it the most extreme meaning possible...and yet my quote is merely said in passing and meaningless to the points immediately following it. That's interesting.
5.27.2009 5:00pm
Cardozo'd (www):
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 - That is her quote about the O'Connor quote. O'Connor didn't say woman and men "should" reach the same conclusion, but WILL reach the same conclusion. Sotomayor disagrees with this because doesn't think they will come to the same conclusion...she says nothing of whether they should.

Sorry LawDude...read the speech.
5.27.2009 5:03pm
Scott Scheule (mail) (www):
Ah, the microscopic focus on the quotes of political appointees. Is there anything more liable to lead one to Derrida?
5.27.2009 5:04pm
Ilya Somin:
The Times always does these "man in the news" (or "woman in the news") stories after a major announcement. They're almost always biography-heavy and full of praise, with only the slightest mention of controversy. The more "serious" journalism takes place in other articles, as your own post acknowledges.

I specifically remember they gave Chief Justice Roberts the same treatment, and it was similarly glowing. Yes, by even the NYT.

So don't get all fired up about this as evidence of some sort of media bias.


If the times fawned over Roberts and ignored problematic aspects of his record in the lead story about him right after his nomination, they deserve criticism for it. However, if Roberts had said something like that he hopes that a white male judge would generally make better decisions than a minority one," I suspect the Times would at least have mentioned it somewhere in their lengthy bio piece on him.
5.27.2009 5:04pm
Justin (mail):
Ilya:

"Sure, I would want a wide range of backgrounds. But I would also want judges who strive to minimize the influence of race and gender on their decisionmaking rather than endorsing it. That's what my whole objection to Sotomayor was about."

Sotomayor (from the exact same speech):

"While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes 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. 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."

Gee, Ilya, maybe you should read the speech again. Just to be on the safe side.
5.27.2009 5:04pm
hawkins:
WTF?!?! Why the hell, in a post that has nothing to do with soccer, would you disclose the score? I doubt Im the only one taping the game.
5.27.2009 5:11pm
Cardozo'd (www):
However, if Roberts had said something like that he hopes that a white male judge would generally make better decisions than a minority one," I suspect the Times would at least have mentioned it somewhere in their lengthy bio piece on him.

And if Sotomayor had said something like that they would have done it to her. However, she didn't do that. She said the equivalent of..."I would hope those who have experienced X, would make better decisions in X cases" - doesn't seem so controversial if you replace X with say Contracts, the constitution or tort law does it?
5.27.2009 5:12pm
Ilya Somin:
Sotomayor (from the exact same speech):

"While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes 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. 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."

Gee, Ilya, maybe you should read the speech again. Just to be on the safe side.


Yes, she said that. She also said - in the very next sentence after the one you quoted - that she thinks it would be a "disservice" for judges to ignore their racial and ethnic backgrounds in their decisionsi. And she also said the statement about how she hopes that a Latina judge would decide better than a white male one. Apparently, since she believes that Cederbaum's "aspiration" is impossible to achieve, judges should instead allow race and ethnicity to influence their decisionmaking at least in many cases.
5.27.2009 5:15pm
EC2:
Sorry haters, the Yankees are the greatest team in the history of sport. Deal with it. Although I'm glad to see a Yankees fan nominated to the high court, I was pulling for a different respected hispanic judge: The Honorable Mariano Rivera!
5.27.2009 5:16pm
CJColucci:
I once appeared before Judge Sotomayor, who gave me a hard time and ruled against me. That is all the evidence I need to know that she lacks temperament, intellect, and respect for the rule of law.

I suspect most of you would think I was some kind of obsessional lunatic to draw such conclusions from such evidence, but it is actual, concrete evidence, and a good bit more evidence than anyone has been throwing around here.

Although Judge Sotomayor would not have made my short list -- for the rather flimsy reasons cited above -- I can't help but be grateful for her selection. Watching the reaction has been, and promises to be, the best entertainment I've had in a while.
5.27.2009 5:17pm
martinned (mail) (www):
@hawkins: Sorry, didn't think about the time difference. On this side of the Atlantic, everyone with a pulse has at least one eye on the nearest TV. But don't worry, it's a great match no matter how you look at it, not to mention that past results proove that in football anything is possible.
5.27.2009 5:17pm
Steve H (mail):

WTF?!?! Why the hell, in a post that has nothing to do with soccer, would you disclose the score? I doubt Im the only one taping the game.


My thoughts exactly. If people want to know the score, they can find the score easily enough.

The VC should be "safe" from such hidden spoilers.

In all honesty, I think the Powers That Be might want to consider deleting martinned's post, not as a punitive measure, but for the benefit of others who have recorded the game and plan to watch it later.
5.27.2009 5:20pm
Justin (mail):
Ilya, nice to take another sentence out of context to somehow negate the fact that she said quite explicitly something that you are accusing her of saying the opposite of. In context, the disservice she is discussing is whether the lack of people of gender and color on the bench, given the fact that a purely objective view is potentially impossible, leaves the judicial viewpoint incomplete.

It is improper, in my view, to interpret people's words so uncharitably, even if they've said explicitly something that refutes this interpretation. It is also improper to take an inference taken out of context can defeat either someone's entire speech or a specific and explicit thing they've said in context.

I don't know what has set you off about this speech, but what you're reading into it is, to put it mildly, absurd.
5.27.2009 5:31pm
Steve:
Apparently, since she believes that Cederbaum's "aspiration" is impossible to achieve, judges should instead allow race and ethnicity to influence their decisionmaking at least in many cases.

This is an almost incomprehensible sentiment. Because it's impossible to completely set aside one's background experiences in thinking about a case, one should allow it to be an influence? It's not a question of "allow" or "not allow" - her very point is that an all-too-human judge cannot completely set aside these considerations no matter how hard they try to "not allow" it.

This is strange. A very non-hackish person like Prof. Somin interpreting thoughtful comments on judging in an exceedingly hackish manner. It's like there's no interest in thinking about this speech any more deeply than Rush Limbaugh or Newt Gingrich have.
5.27.2009 5:36pm
PC:
Daniel Larison has an interesting take on this teacup tempest:

There is a great deal of teeth-gnashing about double standards going on right now. Taylor sums up this complaint:
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.
What goes unsaid here is that this would be the wrong thing to do, which makes it unclear why Sotomayor should be punished for saying something that does not seem in itself all that objectionable. I agree that a double standard exists, which tells me that we should not apply an unreasonable standard equally, but instead should try to police and stigmatize expression less obsessively. Note also that the supposed "claim of ethnic and gender superiority," as Taylor puts it, is exceedingly weak, if it is there at all. The first quote can just barely be read this way if you really want to read it that way, and the second does not refer to superiority, but only to difference. Since when have people on the right denied or complained about recognition of the importance of real physiological and cultural differences?
5.27.2009 5:40pm
martinned (mail) (www):
@Steve H.: Again my apologies. Obviously I'd have no objection to have my comment deleted.

Personally, I've never gotten the whole "don't want to know the score thing". If I know a match is being played, I don't have the self control to stop from finding out the score. I just have to know...
5.27.2009 5:41pm
David Welker (www):
Ilya Somin,

I noticed that you provide that sentence out of context. Do you really think YOU are doing good reporting? Because, if you are going to criticize the NY Times, I would hope you would do a better job.

The quote with appropriate context:


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.


Would a Latina woman also have upheld sex and race discrimination? I don't know. Maybe they would have. But, I don't think it is crazy to "hope" that their personal experiences would have led them to come to a "better conclusion" on that issue.

I think it is bad reporting to include this quote without the sentence that succeeds it. Of course, you are not a reporter, but I think the same criticism is applicable -- especially when you are going out of your way to criticize the reporting of another.
5.27.2009 5:45pm
Steve H (mail):
martinned, you don't need to apologize to me, because I saw the second half in a bar. I just wanted to suggest to the Conspiracy that they edit the post to protect others.

Although I have to say it's getting harder to remain unspoiled for a Euro soccer game. A few years ago, I could record a Newcastle game and wait a few days to watch it. Now, EPL scores are showing up in my local (Salt Lake City) paper, and scores from the big Euro matches are on the front page of American news and sports websites. (Although I'm pretty confident Newcastle's scores won't be posted anywhere obvious next year.)

Actually, I should be apologizing to you, since I just took it as a given that you were posting from the States and should therefore assume that some people here were trying to keep themselves unspoiled, when there is really no basis to leap to such a conclusion.
5.27.2009 5:56pm
lawdude:
Well, we now know the Democratic talking points regarding the nominee's views on race:

Step one: Say that the incredibly-easy-to-understand quote "is taken out of context."

If someone responds by putting the quote in context by including, say, other portions of the speech, proceed to step two.

Step two: Say "those other statements are out of context as well."

Step three: repeat steps one and two as necessary, calling anyone who disagrees "absurd" or "hacks" or "Rush Limbaugh."
5.27.2009 6:08pm
Justin (mail):
Sadly, I don't get briefed daily by David Plouffe, lawdude.
5.27.2009 6:17pm
Armen (mail) (www):
Ilya's arguments about the quote (btw, I love how the full sentence isn't even quoted because by adding "Second" it would reveal that it's part of a wider thought) remind me of Lionel Hutz:

Works on a Contingency Basis

No Money Down.


Becomes

Works on a Contingency Basis?

No. Money Down!
5.27.2009 6:21pm
levisbaby:

Yes, I did say that she is "very liberal." However, I never said that that by itself was sufficient reason to oppose her nomination.

What you did say was that she was "very liberal" and thus likely to make incorrect decisions. Or words to that effect. Right?

So while that isn't exactly saying that is sufficient reason to oppose her, it is kind of odd that you would think that reaching incorrect decisions is ___not___ a reason to oppose a nominee.
5.27.2009 6:24pm
Owen Hutchins (mail):
Please, you don't have to worry about being labeled "racist" or "sexist"; most of us realize that your real objection to her is that Obama nominated her. It's just hard to get past the point that it was George HW Bush that nominated her for the Federal bench to begin with, and that the Senate has twice confirmed her appointments already, and yet now the Republicans have problems with her.
5.27.2009 6:37pm
Owen Hutchins (mail):

I once appeared before Judge Sotomayor, who gave me a hard time and ruled against me. That is all the evidence I need to know that she lacks temperament, intellect, and respect for the rule of law.

You're kidding, right?
5.27.2009 6:38pm
ShelbyC:

I think it is bad reporting to include this quote without the sentence that succeeds it. Of course, you are not a reporter, but I think the same criticism is applicable


I don't see how the sentence changes anything. I still don't see how it's cool to hope that one race is "better" than another in any kind of case, including discrimination. Hell, if what she says is true, why don't we just assign all discrimination cases to Latina judges?
5.27.2009 6:45pm
ShelbyC:

Would a Latina woman also have upheld sex and race discrimination? I don't know. Maybe they would have.


I don't know. If the discrimination at issue is legal, I hope she would uphold it.
5.27.2009 6:54pm
David Welker (www):
About paragraphs:


However, nothing in the paragraph where the statement about "a wise Latina" judge occurs suggests that her supposed superiority is limited to discrimination cases. Nor does anything else in the speech. The fact that discrimination cases are mentioned in passing in another paragraph suggests nothing about the more general meaning of the rest of the speech.


Query: Who decided where the paragraph breaks in this speech were supposed to go? If it was the students of the law journal and not Sotomayor, I think you are making a big mistake relying on precisely what is in one paragraph versus another.


Nothing in the speech - absolutely nothing - suggests any such limitation.


Read the very next sentence:


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.


These sentences seem like they fit together pretty well to me. First she mentions white males in general, then she mentions a particular context in which white males may have made mistakes in their decision-making. I think it is perfectly reasonable to suggest that this context, which comes immediately in the next sentence of her speech, is intended to limit the context of the statement.


Sure, I would want a wide range of backgrounds. But I would also want judges who strive to minimize the influence of race and gender on their decisionmaking rather than endorsing it. That's what my whole objection to Sotomayor was about.


Were Justice Holmes and Cardozo "minimizing" the influence of race and gender when they upheld race and gender discrimination? I mean, they didn't say: "I am a white male, so I think that race and gender discrimination is okay, right?" So, were the minimizing the role of race and gender simply by not mentioning it? I don't think so.

Clearly, what Sotomayor is saying is that the negative consequences of race and gender discrimination were probably easier for Holmes and Cardozo to discount because they had not experienced it. How does one "minimize" the influence of race and gender when the problem is that you are underestimating the negative consequences? Ignoring or minimizing those negative consequences may not be an act that explicitly references race and gender, but it is not the same thing as minimizing the role of race and gender in decision-making, is it? Of course, one way to minimize the effect of race and gender is, of course, through "empathy" for people who face discrimination, but last time I checked, the word empathy is the latest scary word for conservatives...

So, I think what Sotomayor is saying is that she "hopes" that a Latina woman, who would presumably be the sort of person who would be more likely negative recipient of race and sex discrimination, would not minimize these consequences. The problem would be much more real for them.

Maybe the real way to minimize the influence of race and gender in decision-making in this context where certain people are likely to experience such discrimination and others are not is to ensure that the voices of minorities and women are on the bench. Mere empathy may not be adequate. (Of course, it should be pointed out that conservatives apparently think that empathy is a bad thing! Which of course would tend to justify the view of minorities and woman that they need actual representation and cannot rely on mere empathy.)

You know, conservatives seem to have the very same skepticism about empathy when it comes to voting. How often do you hear conservatives objecting to proposals that decrease the percentage of the population that pays income tax, out of fear that people who don't pay taxes will not "empathize" with those that do?

It is sort of ironic. Some minorities would tend to think that there should be women and minorities on the bench, because mere empathy is not enough. When it comes to taxes, conservatives would agree with them that empathy is not enough.

What do conservatives do in response to their concerns that empathy is not enough? They try to get represented. How do they do that? They try to ensure they are represented by maximizing the number of middle-class people who pay income taxes and opposing proposals that would decrease the number of people who pay income tax. It really is the same logic. Which I think is very interesting.

Anyway, as a white male, I am not offended by Sotomayor's views in the slightest. She may very well be right that a court system that does not have any women or minority voices might minimize or discount negative consequences that fall on such groups.

So, in any case, I share your view that we should minimize the role of race and gender in decision-making. By ensuring that their are many voices that are heard. Because empathy, even though it is legitimate and necessary, probably is not sufficient.

Anyway, I would categorically assert that any attempt by you, Somin to make Sotomayor into some sort of racist who is saying as a categorical matter that Latina women make better decisions than white males is way off. She may be saying something that I agree with and you disagree with, but she isn't saying something that is racist or inappropriate, as you are trying to assert.

As you say, people should read the speech for themselves. When they do, they will see you are way off.
5.27.2009 7:14pm
Cato The Elder (mail):
ShelbyC,

Be prepared to be held accountable for privileges you never even knew you had.
5.27.2009 7:15pm
David Welker (www):

I don't know. If the discrimination at issue is legal, I hope she would uphold it.


In the real world, which you live in whether you realize it or not, sometimes law is ambiguous. Sometimes the perceived consequences of one interpretation versus another have an impact on what interpretation of the law that ends up winning out. In hard cases, there is no objectively correct answer. Sometimes these cases can be dodged, sometimes they can't. In such cases, if one were to think of consequences in terms of cost-benefit analysis, then the issue is whether a person is systematically ignoring or discounting certain costs (or certain benefits), because that person and the people they associate with are unlikely to experience those costs (or benefits).

Yeah, this is the real world. Even if you are a "stupid" conservative who falsely believes that the law can always be mechanically applied. =)

This comes back to a past discussion by Orin Kerr. "Of course no conservative believes that the law can always be mechanically applied!" See this quote by Robert Bork! Don't comments by some conservatives (presuming ShelbyC to be one of them) contradict that assertion.

A lot of the time, like here, it seems that the premise of conservative arguments is that there is no legal ambiguity. And you wonder why liberals bother to argue against ththe view that there is no legal ambiguity... It is because there are real live conservatives out there who really do (falsely) believe the law can be mechanically applied.
5.27.2009 7:26pm
ShelbyC:
@David Welker, boy did you kick the crap out of that strawman.

But again, why do you think a Latina can always decide cases, even just discrimination cases, "better" than white men? Hell, I've known whites who think we live in a color-blind society, and minorities who think the rain stops and the birds start singing when a white man walks out the door. Why can Latinas decide cases better? And if they can, shouldn't we just give all discrimination cases to Latina's?

And BTW, I consider myself more Libertarian than conservative.
5.27.2009 7:37pm
frankcross (mail):
It is ambiguous, Ilya. But it is a very plausible reading that she was referring to discrimination cases, given the immediate surrounding context. And it seems a more likely reading.

I think it would be enormously unreasonable for a person to make a statement that a Latina woman is across the board better than a white male. Maybe she is such an enormously unreasonable person. But I would be more generous in interpreting the statement. And if she really believed the enormously unreasonable position, I would think there would be more evidence of this belief than a single sentence.

I do think you can well challenge the statement, even in a discrimination context. I'm not sure that leaning to one side of a controversy is "better." But I suspect it was limited to this context.
5.27.2009 7:41pm
David Welker (www):

I don't see how the sentence changes anything. I still don't see how it's cool to hope that one race is "better" than another in any kind of case, including discrimination. Hell, if what she says is true, why don't we just assign all discrimination cases to Latina judges?


Because Latina judges would have the same problem as white male judges. Again, Sotomayor's point is obviously not that Latina judges are better than white male judges as a general matter. Her point is that in particular contexts, the views of white male judges are going to be biased in terms of assessing costs and benefits, and that Latina judges need to be represented in the judiciary along with them. (Not excluding white males because they are inferior, but working with white males.)

Of course, to say that the world is a better place with some Latina judges at all obviously implies that their presence would lead to some better decisions. Like, apparently, these historical cases where race and sex discrimination are at issue, because white males were historically unlikely to bear the costs of such discrimination. Hopefully, a Latina judge would not make that particular error (although they may be susceptible to making a different set of errors that white males would be less likely to make).

Of course, the universe of cases where any of this actual matters is relatively small. But, in some cases, and those are really important cases, race and gender are likely to make a difference. The world is a better place when we have some Latina judges on the bench and when we have some Asian judges and some women judges and some white male judges and so on. To say that is not to say that one group is categorically superior to another. In fact, it is to say the exact opposite.
5.27.2009 7:41pm
ShelbyC:

Again, Sotomayor's point is obviously not that Latina judges are better than white male judges as a general matter.


Sorry, I was getting confused by the words she used to express her point. The words you use make her point seem so much more reasonable.
5.27.2009 7:49pm
David Welker (www):

boy did you kick the crap out of that strawman


In contrast to yourself, who is of course not making a strawman out of the statements of Sotomayor at all.

It seems to me that the premise of your argument is either that the law can be applied mechanically, or it isn't very relevant to the discussion here. So, maybe I was making a strawman out of your argument, based on the assumption that your statement was somehow relevant. I am not sure if that is being charitable or uncharitable.
5.27.2009 7:50pm
ShelbyC:

premise of your argument is either that the law can be applied mechanically


I'm not sure how that is the premise of my arguement.

But anyway, what I'm trying to say is that I think it's pretty clear from Judge Sonya's speech that she belives that a Latina would make better decisions in (either all cases/ or just race discrimination cases, I don't have an opinion) that a white man. That's not an outrageous position, but I think it's wrong.

And I don't think you've made the case that that's not what she's trying to say.
5.27.2009 8:03pm
David Welker (www):
ShelbyC,

Actually, if she is trying to say that in all race discrimination cases, a Latina would make a better decision than a white male, that in fact is a pretty outrageous position. It would even be more outrageous if she were to say that a Latina would make better decisions than a white male in all cases.

I think that pretty clearly she is discussing a particular historical context in which white males did not face the costs of race and sex discrimination, but nonetheless were solely responsible for deciding whether to uphold it or not.

I am sure we will hear all about what she says she meant in her upcoming confirmation hearing. I look forward to it.
5.27.2009 8:19pm
miss p (mail):
Justin wrote:


It is improper, in my view, to interpret people's words so uncharitably, even if they've said explicitly something that refutes this interpretation. It is also improper to take an inference taken out of context can defeat either someone's entire speech or a specific and explicit thing they've said in context.

I don't know what has set you off about this speech, but what you're reading into it is, to put it mildly, absurd.


Hear, hear. Prof. Somin, these posts really are embarrassing for someone of your stature.
5.27.2009 8:50pm
RPT (mail):
"Cato:

ShelbyC,

Be prepared to be held accountable for privileges you never even knew you had."

As in, "he was born on third base and thought he hit a triple?"
Doesn't everybody have a Mercedes?
5.27.2009 8:58pm
GMUSL '07 Alum (mail):
Damning feature? Hardly. It's her one redeeming feature.

We get it though -- thanks to your ad nauseum posting on the matter -- you love the Sux, the communist menace from the most racist large city in America, whose residents' vile throat-rapings of Standard American English are the stuff of nightmares. Why, that's just as classy as Lord Geoffrey AmHerst's use of smallpox blankets!

As if inflicting that wretched accent upon us wasn't enough, we also have to suffer their similarly pleasant electoral choices, Kerry, Kennedy, Markey, and Bawney Fwank being merely the most notable.

In a just world, they'd be locked in their "Yankees Suck" echo chamber of delusions, and neither they nor their heinous politicians would bother the rest of us.
5.27.2009 9:41pm
GMUSL '07 Alum (mail):
Unlike you -- whose otherwise laudable ideas are dwarfed by your nauseating Sux boosterism, Sotomayor's support of the estimable Yankees franchise may be the one thing that saves her soul.
5.27.2009 9:43pm
jukeboxgrad (mail):
somin:

allowing one's race and ethnicity to influence legal decisions even in discrimination cases is still problematic.… I would also want judges who strive to minimize the influence of race and gender on their decisionmaking rather than endorsing it.


I see you feel strongly about this, and therefore I hope you give the following quote the full attention it deserves. For some reason it's being overlooked, even though it's highly relevant to the point you raise:

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.


Hopefully you will make an effort to call attention to this dangerous expression of empathy.
5.27.2009 10:19pm
Owen Hutchins (mail):
That beats a judge pretending discrimination doesn't happen, because it never happened to him. Ledbetter springs to mind.
5.27.2009 11:01pm
Rich Rostrom (mail):
When someone says "X is good - but really it's impossible" and then waxes eloquent about anti-X, I take that first statement as lip service.

For instance, there is a famous 1856 letter by Robert E. Lee in which he opined that "slavery as an institution is a moral &political evil." That passage is often cited by Confederate apologists as evidence that Lee was anti-slavery. This ignores the rest of the letter, in which Lee firmly states his opposition to ending slavery in less than a few hundred years, expounds the benefits of slavery to blacks, and vehemently denounces abolitionism.

The parallel to Sotomayor is clear. She makes a token gesture toward judicial impartiality, which is little more than a platitude - then rejects it as an impossibility, and goes on to suggest that it is beneficial for judges to let their personal experiences influence their decisions.

As with Lee, it's pretty clear where the real feeling lies.
5.27.2009 11:12pm
NickM (mail) (www):
GMUSL - does Detroit no longer count as a large city?

Nick
5.28.2009 12:15am
Leo Marvin (mail):
What Frank Cross said.
5.28.2009 1:49am
jukeboxgrad (mail):
rich:

goes on to suggest that it is beneficial for judges to let their personal experiences influence their decisions.


And it's shocking to notice that this view was not just expressed in one place. It was also expressed here:

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.


Hopefully we would see an appropriate reaction to this.
5.28.2009 7:12am
jukeboxgrad (mail):
And another indication we're headed for trouble is when a president describes a judge like this:

a delightful and warm, intelligent person who has great empathy


People are already upset, and they haven't even noticed these other quotes yet.
5.28.2009 7:24am
jukeboxgrad (mail):
Oops, I didn't notice that miss p and andrew were a few hours ahead of me in other threads.
5.28.2009 8:07am
CJColucci:
"I once appeared before Judge Sotomayor, who gave me a hard time and ruled against me. That is all the evidence I need to know that she lacks temperament, intellect, and respect for the rule of law."


You're kidding, right?


Well —- yes, but the joke may not be what you think.
5.28.2009 11:06am

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