Sotomayor: Back to the past

Racists support Sotomayor:

Gary Marx, executive director of the conservative Judicial Confirmation Network, said he saw a playbook for the campaign against Judge Sotomayor in the successful attacks on Lani Guinier, whose 1993 nomination to a top Justice Department post was withdrawn after an outcry over her writings arguing for alternative voting systems intended to better represent minorities.

“We will see ‘racial quotas’ become a much bigger issue than they might have been had another nominee been brought forward,” Mr. Marx said.

But civil rights advocates, including Ms. Guinier, say times have changed in their favor, also citing Mr. Obama’s election. In an interview, Ms. Guinier said she saw the debate over Judge Sotomayor’s nomination in part as an opportunity for civil rights advocates to push back against the kind of criticism that had thwarted her own nomination.

“It is easy to understand the idea of viewing an individual on the content of their character rather than the color of their skin,” Ms. Guinier said, but race also is a social phenomenon of politics, history and economics that demand deliberate policy responses.

This is not surprising, as Sotomayor is well known for racist remarks that she thought better of after White House officials criticized her for them, years later.

15 thoughts on “Sotomayor: Back to the past”

  1. Please stop it with this. This is unbecoming of a thoughtful, deliberative, and rational soul.

    please read this article: http://www.scotusblog.com/wp/judge-sotomayor-and-race/

    “It seems to me that there is an infinitely simpler and more accurate way of figuring out whether Judge Sotomayor decides cases involving race fairly and dispassionately – read her decisions. So I did: I am in the midst of reviewing every single race-related case on which she sat on the Second Circuit.”

    Agreed. Seems to me that we shouldn’t blame Sotomayor for the same virtues we praised Alito with, afterall. And that is that she takes into account her life experiences as a judge (this took 200 years for any judge to finally admit, but of course, it is simply impossible to avoid admitting).

    “There are roughly 100. They cover the gamut from employment discrimination to racial bias in jury selection. I decided that I would stop and write an interim report once I got through her 50 most recent race-related cases other than Ricci because the numbers are sufficiently striking and decisive. Here is what I found.

    In those 50 cases, the panel accepted the claim of race discrimination only three times. In all three cases, the panel was unanimous; in all three, it included a Republican appointee. In roughly 45, the claim was rejected. (Two were procedural dispositions.)”

    Hmmm…. Don’t sound like such a “racist” now does she?

    Really. Unless you’ve read her decisions, you are simply echoing a white male fear of the unknown and dressing it up with form of logic that is best described as sophistry and worst, something far more destructive.

  2. Fed X.,

    Thank you for your comment.

    As I mentioned earlier [1], the desire of supporters of Obama to defend his nominee from her own words far exceeds obama’s desires to do the same. While the White House is walking back her remarks as ill-chosen, supporters who have not yet gotten the message still attempt to defend the undefensible.

    Her remarks are not more limited to taking “into account her life experiences as a judge” as would, say remarks by her along the lines of:

    Second, I would hope that a foolish black boy with the poverty of his experience would more often than not commit a sexual crime than a white man who hasn’t lived that life.

    In both Sotomayor’s statement and the example, the offending quote features (a) unequal constructions, (b) an identification of experience as important, (c) a privileging of some backgrounds. (a) is obvious, as it (b). Of course, when it comes to (c), race is clearly associated with risk-factors for crime, while it is not at all obvious that Latino-ancesry is associated with risk-factors of better jurisprudence.

    Hmmm…. Don’t sound like such a “racist” now does she?

    The methodology is flawed, both procedurally, statistically, and substantively.

    Proceduraly, it somehow assumes that a racist would oppose claims of racial discrimination. Why would we think this? In the case of the New Haven firefighters [1], Sotomayor sided against victims of racial discrimination. It is inconceivable that Tom Goldstein of SCOTUS blog was unaware of this case.

    Statistically, the analysis presents raw analysis, but does not compare the numbers to other judges. I would expect such a scientifically-blind methodology from a lawyer (lawyers are not trained to understand the world, or generate useful theories, etc), but it is worrying that many people do, and so could be misled by Goldstein’s piece.

    Substantively, the methodology assumes that Sotomayor’s beliefs are better expressed in her judicial voting record than her public speaches. Why would this be so? One might expect such logic to lead to the aquittal of every rapist: in 99% of social contact, the rapist did not rape a woman. What a fantastic record!

    Your last paragraph contains an ad hominem remark. I wonder if Sotomayor would regret that I, unlike her, do not have the richness of experience to come to a valid conclusion in this case?

    [1] http://online.wsj.com/article/SB124354041637563491.html

  3. TDAXP: oh, I’m sorry. I thought the only reason we cared about her “words” were because we were afraid they would lead to bad “deeds.” And the evidence is that they do not lead to any such thing as reverse discrimination. But I now see you are only concerned with her words because you consider ideas like these as forbidden. Such censorship of private views is not only morally repugnant and antithetical to the US experiment, it is also illegal for the government to dictate to its public servants what their views should be. At least now I’m clear that you aren’t concerned about her judging, you just don’t like her.

  4. Fed X.,

    As it is, your comment contains two specious lines of reasoning.

    The first:

    TDAXP: oh, I’m sorry. I thought the only reason we cared about her “words” were because we were afraid they would lead to bad “deeds.” And the evidence is that they do not lead to any such thing as reverse discrimination. But I now see you are only concerned with her words because you consider ideas like these as forbidden

    Obviously, we wish to avoid bad results from naming Sotomayor as a justice to the supreme court. If Sotomayor was a racist – or alternatively simply oblivious to the whole issue [1] — this would be troublesome in a Justice.

    Your argument is that, presuming her orientation is unchanged, her actions as an Appeals Court judge would be identical to her actions as a Justice on the Supreme Court.

    This is true if you assume she has no ambition. Or, alternative, she has already achieved her lifetime ambition of being an Appeals Court judge.

    Alternative, if her amibition was to be on the Supreme Court, we would expect her actions now to reflect her understanding of the decisions that could get her named to the Supreme Court, while her actions on the Supreme Court would reflect her actual beliefs and desires.

    Arguing invariance where it is irrational to expect it is fallacious.

    Onto your second specious line of reasoning:

    Such censorship of private views is not only morally repugnant and antithetical to the US experiment, it is also illegal for the government to dictate to its public servants what their views should be. At least now I’m clear that you aren’t concerned about her judging, you just don’t like her.

    This same line of reasoning would make political tests for President, President pro Tempore, and Speaker of the House illegal. However, all of these officers of the United States are regulaly subjected to political tests before their election.

    Obviously officers of the United Statese are regularly subjected to scrutiny with respect to their views. Indeed, approving officials with the proper views is half the job of Congress (the other being writing laws that reflect the proper views).

    In the future, don’t waste my time with specious comments like this one. If you want to rant to the converted, comment at Daily Kos, or Red State, or whatever site you prefer. This site is for useful comment and and debate: two things your most recent comment completely lacked.

    [1] http://www.halfsigma.com/2009/06/would-sotomayor-have-gotten-into-yale-law-school-if-she-were-white.html

  5. This is hysterical TDAXP.

    Instead of looking at the career of a judge, and how she has handled herself in the courtroom, and how she has settled cases, and how she has legally reasoned for the last few decades, you argue we should instead impose political tests and search for any comment which, once taken out of context, can be viewed as some sort of portal to her inner most ambitions. You imply we can’t trust what she does in the courtroom (because of ambition? A show for the white man) but instead you need to drop a device outside the chicken shack at night and see what sort of pillowtalk you can dig up.

    “Alternative, if her amibition was to be on the Supreme Court, we would expect her actions now to reflect her understanding of the decisions that could get her named to the Supreme Court, while her actions on the Supreme Court would reflect her actual beliefs and desires.”

    Those scheming latinas! You can’t believe what they do, you can only listen to what they say to their friends, on one occasion. Maybe we should administer some sort of neuropsychological testing to search for their true motives. I mean afterall, they don’t speak English.

    Call me old fashioned TDAXP, but when I look at a judge, I don’t see someone with a lot of ambition. I see someone who loves the law, whether I disagree with their interpretation or not. Being a judge is a thankless job. There isn’t much to impress people with. You don’t make much money, and certainly don’t get must respect compared the lawyers who try cases before you each day.

    Any judge in this country has a record, and when you want to know how they are likely to rule on a case prior to the case being argued, you look at the record. You don’t look at their secret aspirations and motives and other such things (all of which are completely unknowable). The charge of racist, itself, is not something that can be empirically proven. You know that just as well as I do. So why do it?

    But hey, just cause we’re paranoid don’t mean they ain’t out to get us!

    I wonder, do you hold the same antipathy for Judge Alito when he stated in his confirmation process that he cannot avoid applying the lessons of the immigrant because its who he is?

    Maybe you don’t know what a judge is. I suggest, and do so in all seriousness, that you read The Nature of the Judicial Process by Benjamin Cardozo. He was of Portuguese descent, but he did speak english.

    “The work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth…”

    I commend it to your attention. And someday I hope you look back at your comment and wonder aloud whether or not you really ever made such an argument.

  6. Fed X,

    Before replying, I will note that your ad hominem accusations are unacceptable in serious conversation. Please refer to this blog’s policy on trolling. [1]

    Instead of looking at the career of a judge, and how she has handled herself in the courtroom, and how she has settled cases, and how she has legally reasoned for the last few decades, you argue we should instead impose political tests

    Of course political officers should be subject to political tests.

    Perhaps you are arguing that Sotomayor is a strict constructionist, and avoids considering the political implications of her verdicts?

    You imply we can’t trust what she does in the courtroom (because of ambition?

    I do not know in what world high government officers do not have ambition. Certainly, it is not this one.

    see what sort of pillowtalk you can dig up.

    I was unaware that invited speeches are considered to be ‘pillow talk.’

    If so, I suppose you argue that commentary on elections should be exclusively constrained to voting records, and not to what candidates say in speeches before their political campaign?

    Those scheming

    If your comment was more serious, the next word would have been “humans,” though the sentence would make still more sense if “scheming” was replaced with “ambitious.” Instead, you attempt an ad hominem attack, instead of referring to my substantive points.

    Call me old fashioned TDAXP, but when I look at a judge, I don’t see someone with a lot of ambition.

    Nothing old fashioned here. Such a perspective when it comes to high government officials in the judiciary is probably simplistic and naive in most cases, but not old fashioned.

    I see someone who loves the law, whether I disagree with their interpretation or not.

    I assume likewise you see in Presidents individuals without ambition who love administration, and you see in Congressmen individuals without ambition who love policy?

    I see someone who loves the law, whether I disagree with their interpretation or not. Being a judge is a thankless job. There isn’t much to impress people with. You don’t make much money, and certainly don’t get must respect compared the lawyers who try cases before you each day.

    The same argument could be made to argue that Presidents or Congressmen have thankless jobs, as the money does not compare to what most have in the private sector, and their professions are often despised….

    Of course, this ignores the other renumeration of high government office: power.

    Any judge in this country has a record, and when you want to know how they are likely to rule on a case prior to the case being argued, you look at the record.

    You are arguinng for invariance here, but you don’t say why you are arguing for invariance. That is, what reason do you have to think that there is no significant difference in the interests of an appeals court judge and a Supreme Court Justice?

    You don’t look at their secret aspirations and motives and other such things (all of which are completely unknowable).

    Do you use the same standard in evaluating Presidents, Congressmen, Cabinet Secretaries, etc?

    The charge of racist, itself, is not something that can be empirically proven. You know that just as well as I do. So why do it?

    All we can ever have here is indicators or latent factors that influence performance. We can never have ‘proof.’

    The only use of the word ‘proof’ in your sentence is rhetorical. This part of your comment — like most of your comment — is substanceless.

    I wonder, do you hold the same antipathy

    The word ‘antipathy’ is again rhetorical. I have no idea what it refers to.

    As I mentioned, Sotomayor is a racist, and should not be elevated to the Supreme Court. However, the rest of your question does not mention racism, but merely the influence of personal background.

    for Judge Alito when he stated in his confirmation process that he cannot avoid applying the lessons of the immigrant because its who he is?

    I am not aware of anyone — supporter or detractor– who has argued that Alito’s agenda is driven by identity politics.

    [1] http://www.tdaxp.com/archive/2008/06/22/trolls.html

  7. Well guys, this is a pretty interesting argument you are having, and maybe as a non-academic member of the great unwashed I don’t understand the nuances of the argument, but, I would like to butt in and just cut to the chase and tell you that this is how I think it comes down.

    Being a Judge serving on the bench and being a Supreme Court Justice are very different activities so all bets are off. Most Judges on the bench, no matter their political persuasion, are mostly concerned with following the law and established precedent because they do not want to be reversed by higher courts, including the Supreme Court and their decisions reflect that.

    It’s a pretty rare occurrence for most judges in a lower court to proffer an opinion that finds an un-enumerated right in the Constitution or attempts to overturn a precedent. If it happens, it is important. It is something that deserves attention. It probably tells us something about them.

    All of us, even the least astute among us, recognize unfairness and recognize discrimination, especially in judicial decisions. You don’t have to be a legal scholar to know when you or someone else has been screwed. If it happens, it is important. It is something that deserves attention. It probably tells us something about them.

    So, you can learn things about a person by looking at previous opinions, or attempts to legislate on issues, or prior executive decisions; but, history has show us that it is pretty limited and it is easy to be fooled about what they will do when freed from previous constraints. And, to the chagrin of many Presidents, history is full of examples that show how differently people have performed once they became justices on the Supreme Court than our perception of them, prior to their appointment, would have lead us to believe.

    Think not? Ask President George H.W. Bush about David Souter, whom he thought was a conservative but turned out to be a closet liberal. And not only did Bush think he would be a conservative Justice, Ted Kennedy and John Kerry, who voted against him, thought he was an arch conservative and portrayed him as a right-winger in the mould of Robert Bork. [1] And then there is President Eisenhower, who thought he was appointing a conservative as Chief Justice when he nominated Earl Warren. His prior record sure indicated that he was. But, the Warren Court turned out to be one of the most liberal of all time and Eisenhower is said to have remarked that nominating Warren for the Chief Justice seat was “the biggest damned-fool mistake I ever made.” [2][

    So, just maybe, when people are out of context and tell us about their likes, dislikes, prejudices, attitudes, inclinations, and philosophies, it is important and we had better pay attention. Maybe that is who they really are.

    [1] http://en.wikipedia.org/wiki/David_Souter
    [2] http://en.wikipedia.org/wiki/Earl_Warren

  8. I think I see the problem now TDAXP. You have stated several times in your reply to me that the Supreme Court is a political office. However, the Constitution makes this explicitly not so. Justices are not nominated by political parties. They do not run for office. There is no ballot for them. State court judges, in many places, differ, as the State constitutions differ. But our Constitution makes clear the federal judiciary is not a political office. Therefore, your premise is faulty. If the Supreme Court was a political office, with political power, your argument might have merit. The facts however, are contrary to this, and your argument is flawed from the get-go, without merit. If you’d like to explain how it is you believe that the Supreme Court is, in fact, or has become, in nature, a political office, I’d be willing to have that discussion. But it is not established by law and would need to be established that the law has been circumvented, somehow.

    Rex A: you make some points. But the fact that justices who were considered “liberal” or considered “conservative” prior to appointment, and then went on to have a track record different from that seems to imply that judging is not a political act. Perhaps the problem here is not the judging, but the evaluation and stereotyping of legal reasoning into political camps.

  9. TDAXP: i left out that not only does the Constitution exclude the judiciary from political office, the U.S. Supreme Court, as a body, has an official cannon known as justiciability where, among others, political questions are not proper for grant of cert. It is hard to imagine why you would come to the conclusion that the procedural removal of the federal judiciary from political office be so easily transversed. It is even more inconceivable a claim when you consider the precedent binding the court in decisions on cert.

    No. The federal judiciary is clearly not a political office. And the judiciary itself has put in place restrictions on every becoming such a thing. Since no political power is wielded by the court, and since it is not a political office,your argument is fatally flawed and built on falsehood.

  10. Rex A,

    Well said.

    Fed X,

    Thank you for your reply.

    I think I see the problem now TDAXP. You have stated several times in your reply to me that the Supreme Court is a political office. However, the Constitution makes this explicitly not so.

    I believe you mean implicitly not so, as the Constitution does not explicitly describe any office as political or not.

    In any event, you are wrong.

    Justices are not nominated by political parties.

    True, but as political parties are not described in the Constitution, this refers to the post-ratification development of politics in the US, and not whether an office is political or not.

    They do not run for office.

    The verb one uses to describe the political process of gaining a political office — to run, to stand, to be nominated, etc — may be fascinating from a cultural perspective, but does not make an office political or not.

    There is no ballot for them.

    Indeed. There is no ballot for Cabinet secretaries, either, nor was there one for Senators for much of American history, nor is there a constitutional requirement for a ballot for President.

    But our Constitution makes clear the federal judiciary is not a political office. Therefore, your premise is faulty.

    You restate your thesis as an argument for your thesis, and pretend it is evidence!

    If the Supreme Court was a political office, with political power, your argument might have merit.

    Indeed. It is, and it does.

    If you’d like to explain how it is you believe that the Supreme Court is, in fact, or has become, in nature, a political office,

    It is an inherently political office. I imagine a history of the policy give-and-take of the Supreme Court wrt other branches and sovereigns would dwell on such justices as John Marshall, Roger B. Taney, Earl Warren, and others. However, as with any political office (Speaker of the House, President, Secretary of State, and so on), some office-holders have been much more assertive about the power, privilegs, and scope of their office than others.

    But it is not established by law and would need to be established that the law has been circumvented, somehow.

    Not sure what you mean here.

    i left out that not only does the Constitution exclude the judiciary from political office, the U.S. Supreme Court, as a body, has an official cannon known as justiciability where, among others, political questions are not proper for grant of cert.

    Political questions refer not to questions that concern politics (indeed, this would encompass every question), but to areas where decision-making power is invested in another branch, or the Court does not possess adequate standards for making the case, or it would be impreduent to issue a decision.

    Often, prudent means that any decision would weaken the political power of the Court, as there are more enemies to gain in any ruling than friends.

    No. The federal judiciary is clearly not a political office.

    Repeating a claim does not make it true, nor does presenting trivial (no ballot) or facile (the meaning of ‘political questions’) arguments.

    Since no political power is wielded by the court

    No idea what you mean here! In our system the Judiciary has the power to make case law, which is as binding as legislation.

    Obviously, in a civil law system, such as France, your argument would carry more weight.

  11. I appreciate that many people think the federal judiciary is politically “significant”. But that is different from saying they are a political office. We are debating terms now, and getting into Constitutional history, but lets posit whatever the element of power is that the court holds.

    There is law on this. And the law says that the Court holds only the power to say what the law is. You might refresh your recollection of Marbury v. Madison.

    That is why the justiciability doctrine was developed, to ensure the institution doesn’t over-reach too far into the political process, which again, according to the law, is best left to congress, the president, and their masters.

    Evaluating a judge on what they say the law is is proper. Evaluating a judge on what they say in a private context, once in their life, is not. If it were, many fine judges and many fine opinions would never be, and virtually all past judges would be disqualified.

  12. Fed X,

    Thank you for your comment.

    I appreciate that many people think the federal judiciary is politically “significant”. But that is different from saying they are a political office.

    Indeed. Political officers would be concerned with effecting government policy, negotiating outcomes (formally and informally), and so on. The Court does all of these things.

    There is law on this. And the law says that the Court holds only the power to say what the law is. You might refresh your recollection of Marbury v. Madison.

    Certainly there is a hisory of powers granted to the Court (by the Constitution) and taken up by the Court (of its own accord). The same is true for other branches, as well.

    That is why the justiciability doctrine was developed, to ensure the institution doesn’t over-reach too far into the political process, which again, according to the law, is best left to congress, the president, and their masters.

    One might similarly claim that the Presidency of Richard Nixon was apolitical, because he famously wanted to leave Domestic politics to other branches, or that the modern Speakership is non-political, as it has almost no say-so wrt war and foreign policy.

    Evaluating a judge on what they say the law is is proper.

    Indeed. As is evaluating a Congressman by his voting record and speeches that are read into the Congressional record.

    Arbitrarily limiting yourself to these forms of evidence is limiting, however, and probably bad policy.

    Evaluating a judge on what they say in a private context, once in their life,

    A public speech is a private context?

    (I note you don’t answer questions, btw, but simply reiterate your points. Thus, much of your comment is an unhelpful monolog.)

    As to ‘once,’ of course. We are best off when evaluating patterns of evidence.

    is not. If it were, many fine judges and many fine opinions would never be, and virtually all past judges would be disqualified.

    Indeed. Many officers from other branches are also disqualified.

  13. What I noticed about Sotomayor is that she perceives many feelings and experiences that happen to everyone as being something racial. She talked about feeling too scared to talk as a freshman in the Ivy League and misinterprets it as happening becuase of her race. I try not to call anyone a “racist,” as people have called me “racist” for not understanding an argument I’m making. Truly, I don’t even know what a “racist” is; and I’m not just trying to be humorous about it.

    What I don’t like about Sotomayor is that she has a simplistic outlook on the world. Doesn’t she know that a lot of freshmen are scared to talk in class and not even in the Ivy League? Personally, when I was 18 and first at College I didn’t have much to contribute to class either. If I was forced to contribute, I didn’t really add anything of value. I hated being called upon becuase I didn’t have care for intellectual pursuits at that time in my life. So, I don’t judge people on being “racist” because even Bill Clinton was called a “racist” during the Democrat Party Primaries.

    I just think her worldview is overly simplistic, and that it will be critical to have someone with a little more depth of thought when it comes to issues relating to race and identity politics. America has the opportunity to truly create much of the global order (decide rule-sets) for this century if it can manage its ethnic diversity. The Supreme Court needs people who can truly examine this issue beyond misinterpted past experiences.

    Most important, there’s one question that all judges must agree on or they shouldn’t even be considered and that’s free speech. There’s nothing more important. If a judge proclaims any support for losses of free speech, they should automatically be disqualified. There has to be zero tolerance here.

  14. Seerov,

    You make a brillliant point about Sotomayor viewing common human experiences through a racial lense.

    In my class I regularly have students give demonstrations and presentations. Some hate this. That’s OK. Would would be dangerous if students build up paranoid theories to explain the fact they are nervous of front of others!

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