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My LA Times Debate With Erwin Chemerinsky over the Sotomayor Nomination:

Over the next three days, Erwin Chemerinsky, Dean of the UC Irvine Law School, and I will be debating the Sotomayor nomination at the Los Angeles Times blog. Our first two posts are available here. They address the following question:

Much has been made of the fact that Sonia Sotomayor would be the first Latina justice, and sitting Justice Ruth Bader Ginsburg has said she feels "lonely" as the only woman on the bench. How much, if at all, does the ethnic and gender diversity of the Supreme Court bench matter?

Erwin argues Sotomayor's racial and gender background will be a major asset to the Court. In my view, the appointment of a Hispanic Supreme Court justice is a important symbolic sign of racial progress; but Sotomayor should be judged much more by her record on legal issues (which I think is problematic) than by her background.

I am happy to have the opportunity to debate the nomination with such an oustanding and prominent legal scholar. Ironically, I once defended Chemerinsky's appointment as UCI Dean when it was temporarily rescinded due to foolish claims that he was "too liberal" to be the dean of a major law school. However, we don't agree on too many other issues, and it should be an interesting debate.

On Thursday and Friday, we will discuss other issues related to the nomination.

RPT (mail):
The way your comment is framed appears to suggest that only Republican men are able to properly interpret the law. While Thomas was explicitly endorsed for his empathy, and Scalia and Alito for their Italian ethnicity, Sotomayor is condemned for her own gender and ethnicity. This debate is inevitably headed in that direction, in which you will be cast alongside the Pat Buchanans and Jeff Sessions of the (genteel and of course discrete) white supremacist world. If that is not your intent, now is the time to make it clear.
5.27.2009 9:49pm
AJK:

The way your comment is framed appears to suggest that only Republican men are able to properly interpret the law.


Can you elaborate? I certainly didn't get that from any part of Ilya's post, either here or at the LA Times site.
5.27.2009 9:53pm
Ilya Somin:
The way your comment is framed appears to suggest that only Republican men are able to properly interpret the law. While Thomas was explicitly endorsed for his empathy, and Scalia and Alito for their Italian ethnicity, Sotomayor is condemned for her own gender and ethnicity.

The fact that some Republicans may have endorsed Thomas for his empathy or Scalia and Alito for their ethnicity doesn't mean that I agree with them. I am not responsible for everything that every Republican in the world might say. Lots of Republicans say all sorts of things that I disagree with.

And of course nowhere did I "condemn" Sotomayor for her ethnicity or her gender. In fact, I wrote in the LA Times piece that the appointment of a Hispanic justice is a "milestone" and a sign of "racial progress." Rather, I criticized her for claiming that these were legitimate factors to base legal decisions on. If a white male nominee had said something similar, I would criticize him too.
5.27.2009 10:01pm
glangston (mail):
It matters in the same way that Michelle Wie matters in the PGA.
5.27.2009 10:14pm
CrazyTrain (mail):
"Erwin argues Sotomayor's racial and gender background will be a major asset to the Court. In my view, the appointment of a Hispanic Supreme Court justice is a important symbolic sign of racial progress; but Sotomayor should be judged much more by her record on legal issues (which I think is problematic) than by her background."

Maybe I am missing something, but I don't see your position and Dean Chemerinsky's as inconsistent. I agree with both of you (except I don't find Sotomayor's record "problematic" but I understand why you would).

"Ironically, I once defended Chemerinsky's appointment . . ."

Umm, I don't think you know what "ironically" means. :)
5.27.2009 10:30pm
AJK:


Umm, I don't think you know what "ironically" means. :)



He means that he defended the appointment ironically.
5.27.2009 10:35pm
sputnik (mail):
To be a liberal is the major asset, not a disease.
Being from USSR where liberals were on the front fighting totalitarianism did not help you much, right, Ilya?
5.27.2009 10:44pm
Ilya Somin:
Being from USSR where liberals were on the front fighting totalitarianism did not help you much, right, Ilya?

The people on the front fighting totalitarianism in the USSR were not, for the most part, "liberals" in the American sense of the word. Even if some were, I could consistently support their opposition to totalitarianism while disagreeing with large parts of their affirmative agenda. The fact that a person with political ideology X did a good deed in opposing evil Y does not mean that I have to endorse all of X as a resul.
5.27.2009 10:57pm
Sarcastro (www):
I believe irony is like rain on your wedding day.

[I noticed that while the thesis was directed towards both race and gender, your response was specific to race.

I'm with you on race, but it seems to me the gender side of the thesis is more tricky.

The differences in experience brought by gender is more generalizable than the amorphous descriptor "Hispanic." Furthermore, that the difference between the genders is greater than that between races.

These two factors combine to create a larger possibility that understanding the impact of laws on a given gender may be enhanced by being a member that gender.

Impacts and burdens of laws seem to not be an uncommon factor in appellate analysis.]
5.27.2009 10:57pm
Larrya (mail) (www):
These two factors combine to create a larger possibility that understanding the impact of laws on a given gender may be enhanced by being a member that gender.
The question, of course, is what the justice does with that understanding. If she upholds the right to keep and bear arms because women have greater need of self-defense tools, that's one thing. If she holds that white males can never be victims of discrimination, that's another.
5.27.2009 11:35pm
SPO:
Sotomayor is a hack. Any judge who thinks that prison inmates cannot be disenfranchised by the state and is stupid enough to put that view in writing shouldn't be a traffic court judge, let alone a federal judge.
5.27.2009 11:41pm
Sarcastro (www):
[So Larrya is all about empathy when it reaches the result he wants?]
5.27.2009 11:55pm
BooBerry (mail):
I think that Somin and Chemerinsky were largely arguing past each other in their initial posts, though Chemerinsky hit some real zingers ("Conservatives like to pretend that judicial decisions require no discretion, that justices should just follow the law and that their values are irrelevant. This is silly.").

I think that Chemerinsky anticipated Somin to make the know-nothing-about-law populist conservative argument (like Limbaugh, Hannity, etc.), which Somin is far to smart to do, or believe. Hopefully, Chemerinsky will respond on the merits to Somin's criticisms of several of Sotomayor's opinions.
5.28.2009 12:03am
Christopher Morris (mail):
"In my view, the appointment of a Hispanic Supreme Court justice is a important symbolic sign of racial progress..."

Racial progress? "Hispanics" are a race? What a bizarre country when bright people say things like this. It's not even clear what "Hispanics" share in common other than the application of a government created label (which my own university applies even to Brazilians).

CM
5.28.2009 12:34am
Officious Intermeddler:
Chemerinksy's "zinger" is the sort of weapons-grade stupid straw man that invariably crops up whenever living constitutionalists attempt to defend their judicial ideology. I defy him to actually produce an example of a conservative who pretends that judicial decisions require no discretion.

What originalists do argue is that the exercise of discretion should be informed by what the Constitution says (and doesn't say), and what it meant (and didn't mean) at the time of its ratification, rather than by a justice's values, empathy, life experiences, or policy preferences. Chemerinsky calls this "silly". I'd call it principled, and Chemerinsky's imputing venality to Justice Scalia an example of projection.
5.28.2009 12:39am
catchy:
I don't get it:

"I criticized her for claiming that these were legitimate factors to base legal decisions on."

From Sotomayor's 02 speech her claim was:

1. Personal experiences, natch, inform many rulings to some extent.
2. Different ethnicity + gender correlate reasonably with diversity of experience.
3. It's positive to have a diversity of experiences to draw on since many types of experiences might be relevant (or at least diversity would cancel out bias associated with a homogeneous set of personal experiences influencing rulings.)

Which of (1)- (3) are you denying?

Surely not 1 -- that's a truism. Background experiences shade everyone's judgments to some extent. (Further, personal experiences are drawn on when the literal meaning of words comprising a law + past decisions under-determine a particular application of that law.)

Surely not 2 -- A person's gender and ethnicity typically influence her personal experiences.

Surely not 3 -- Why should a homogeneous set of personal experiences by predominately white males be preferable to a more heterogeneous set?

Sotomayor's claims strike me as somewhat obvious while your criticism remains elusive.

==

Secondly, I wonder if you might respond to the quotes from Alito's confo. hearings in which he explicitly stated that background experiences influenced by his ethnicity would inform his decisions on SCOTUS. E.g.:

"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."

Were these quotes grounds for opposing his nomination, and if so, did you make a mistake in not doing so?
5.28.2009 12:57am
Libertarian1 (mail):
I remember when Justice Thomas was nominated the question arose was out of 280+M Americans was he the past possible candidate for Supreme Court Justice?

I ask the same question here. With the possibilities of appointing Kagan, Wood, Sullivan etc was Sonia Sotomayor the best possible choice?

I can only hope we are as wrong about Sotomayer as the liberals were wrong about Thomas.
5.28.2009 1:13am
SeaDrive:

How much, if at all, does the ethnic and gender diversity of the Supreme Court bench matter?


I think it can matter a lot. We just had the spectacle of male justices being completely unconcerned about the trauma endured by teenage girls being strip searched because (as they remember it), it wouldn't have bothered them. In the absence of a woman on the court, no female voices would have been heard during argument.

The court never hears the unrepresented voice, of course, but more insidiously, it can't listen to the argument that it is unequipped to understand.
5.28.2009 10:33am
Cato The Elder (mail):
What about economic rights? What about business law? What about the unrepresented voice of the entrepreneur and dispossessed Appalachian worker? What is about the IDIOTIC fetishization of discrimination that obsesses the Left?
5.28.2009 2:09pm
Rich Rostrom (mail):
I wonder if Dean Chemerinsky would agree that a graduate of, say, the University of Texas Law School, would bring valuable diversity to a Court which is almost exclusively Ivy Leaguers.

Sotomayor would be yet another Ivy Leaguer; whatever may be said of her family background, she is thoroughly assimilated into the "Establishment". (Rather like Obama.)
5.29.2009 3:53am
Mylo Egipciaco (mail):
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Psychology &Law
By: Mylo Egipciaco

Analysis of Sonia Sotomayor's @ Berkeley University Comment:

"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".

*************************

First, let me say that I would hope that wise persons with the richness of their experience, more often than not, will reach a better conclusion about my analysis than persons who have not lived the life I have lived.

Human cognition and emotion, plus the human experiences we all have lived and genetic factors, shape, along the person that we are. The evolution of who we are at the present moment continues to influence who we will be tomorrow and how we change and adapt to the "new developing self". In simple ways, we are enriched and "limited" by our experience and our "becoming".

In the case of Sonia Sotomayor, a wise Latina woman that hopes that any other wise (with all of its definitions and implications) latina (or any other person), would more times than not (since wisdom may not always be present in our imperfect human condition), reach a better (better for Diversity, Equality &Equity) conclusion than a white (or any other person) who has not lived the same and unique life she has lived.

In Psychology we study the application of concepts created through theoretical frameworks and research to our daily life as well as how we express such experience. Judge Sotomayor's statement, most likely than not, should be seen through the lense of surface and deeper meaning in semantics, heuristics, and identity psychology, law and politics.

Through our U.S. American history, we have embraced identity categories, that although limiting as to what each label may encompass, it assists us in the task of inter-personal communication, comprehension of our similarities and differences, and permits us, in an imperfect human kind of way, to evaluate and measure the extent on how we are structurally inclusive of all identity labels in our institutions and correct any institutional discrimination or injustice that could be violating our own morale, policy, constitutional values, humanity and global human rights.

Sotomayor, just like most of the rest of us, uses in her statement of hope the labels of woman, Latina and white. In doing so, she not only reflects the traditional expressions in our multi-cultural and multi-lingual culture, she as well opens the opportunity for continued dialogue regarding the experience of each one of us as people of a "united" state. She could have as well substituted the word woman, Latina or white with the word person and would have gotten a different perception and response to her expressed statement. But due to our own use of heuristics in communications, her mind at the moment anchored itself through the most readily available representation of her experience in our culture. Her Latina, woman, white ethnic/racial/gender experience has been influenced both by the stereotypes of what each label represents, as well as by the uniqueness of such representation. In the case of the vast Puerto Rican experience, we may include her bilingual, bicultural, mainland United States, mainland Puerto Rico, and sub-cultural New-Yorican experience along with the multi-cultural cosmopolitan experience lived at the low socioeconomic neighborhood of the Bronx. Her woman experience has been influenced through the many challenges and opportunities she has lived in a country with a fair degree of gender equality evolutionary development. Her experience with "whiteness" certainly includes both the progress influenced by Caucasian people in the United States and the collateral challenges faced after the de-institutionalization of slavery and the still-in-progress eradication of the many thick glass-ceilings maintained in U.S. of America as of today (2009).

Federal appeals judge Sotomayor, just like most of the rest of us in many contexts, uses in her hope statement, the word better. This word with all of its meanings always seems to vaguely diffuse the deeper meaning of what we imply or intend to say when our cognitions and emotions anchor themselves with what is more common than not in our "sociocultural expressioned mind". And as such it seems it is always better to use it within the context of what is better for… In Sotomayor's experience with womanhood, Latina-ness and white-ness, it points to a context of better for diversity, equality &equity, struggles she certainly, in depth and scope, is deeply and uniquely familiar with, affected by and learned to overcome and transform. She is poised, with her top academic and practical intelligence, to be able to once again honor the value of diversity in the Supreme Court of the United States of America.

It is my hope that the intersectionality of gender and identity, ethnic/race, language, socioeconomic class, and sexual-affectional orientation oppressions will have a better chance in the future to be eradicated for the strengthening of diversity, equality &equity in our national law and global practice. With Sonia Sotomayor as our new Supreme Court Justice we will be a step closer to such reality…!

Hope our hope is yours as well!
5.30.2009 10:24pm

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