SCOTUS appointment thread

[Altherion]

For me the Ricci case is a disqualifier.

I agree, but the probability of her not being confirmed is extremely low (unless some skeleton comes out of a closet). She's well qualified and both her ethnicity and her gender work in her favor.

[Annelise]

That's my thinking as well, although I don't think exacerbating racial tensions in America is a good thing.

IMO, nominating someone from a minority group does not constitute "exacerbating racial tensions", nor should it. Now if Obama or Dems respond to questions and criticisms regarding her record by shouting "racism!", that would constitute exacerbating racial tensions. Her record should be plenty defensible without stooping to that (or she shouldn't have been nominated).

[Yagathai]

IMO, nominating someone from a minority group does not constitute "exacerbating racial tensions", nor should it.

It does if you're a bigot.

[The_BlauerDragon]

When you say that you read her record, what did you read? And specifically, what did you read that led you to the conclusion that she's a "racist/bigot?"

This is what I read: Here's the link

I kept getting the same impression throughout. It seems like she goes too far out of her way to place emphasis on her racial and gender status for it not to be a bigoted standpoint. Read through it, and look at the associations she is affiliated with, the cases she is noted for (astonishing how many times she's been overturned by the SCOTUS), and then read her quotes. Please tell me if I am being too harsh, but everything I read indicated a bigoted/racist and a very bad example of an "activist" judge. Not someone that I would want to see on the Supreme Court.

As for the term limits, I agree 100%. Senators and SCOTUS judges both need to have their maximum time in service greatly reduced to ensure the ability to get some fresh blood and new ideas into position from time to time. I'd say 12 years should be long enough for anyone to stay in one position in politics. Any longer than that and you can almost guarantee that they are either hopelessly corrupt or that they are so far out of touch as to be completely incompetent.

ETA. For the record, let me make it clear that I find nothing wrong with nominating a member of a minority group (or several minority groups). I do have a problem with someone that uses their minority status as a shield against retribution for their own bad judgment, as a weapon to pull out when they are losing (like a trump card), or as a justification for their every action (whether it is relevant or not). It does no service to anyone but that one person, and it is not a means for true progress by any means. I distinctly got that impression from this judge. If BO feels that his appointments must be minorities first and foremost, I am certain that there are literally hundreds of people that fit the criteria and that would make a better choice than this woman.

[Ormond]

This is what I read: Here's the link

I kept getting the same impression throughout. It seems like she goes too far out of her way to place emphasis on her racial and gender status for it not to be a bigoted standpoint. Read through it, and look at the associations she is affiliated with, the cases she is noted for (astonishing how many times she's been overturned by the SCOTUS), and then read her quotes. Please tell me if I am being too harsh, but everything I read indicated a bigoted/racist and a very bad example of an "activist" judge. Not someone that I would want to see on the Supreme Court.

The CNN page you linked to specifically is listing those aspects of her rulings which might be controversial. It is nowhere near a complete list of cases she has decided. Since they are deliberately picking out the controversial cases, it should be no surprise that they picked the ones where the Supreme Court over-ruled her. If someone has a statistic that shows a much higher percentage of her cases have been over-ruled by higher courts than the average , you might have a point. But this short list, especially considering she has had a fairly long career as a federal judge, certainly doesn't by itself show that she has been overturned by SCOTUS an "astonishing" number of times.

I also really find it incredible that you would think that simply belonging to associations with names like "Hispanic National Bar Association" or "Association of Judges of Hispanic Heritage" is somehow racist. That you would jump to that conclusion seems to show a lack of understanding of what it means to be a minority of any kind in our society. Participating in an organization of people in your profession who come from your ethnic background is admirable to me, and certainly does not show that you are in any way prejudiced against people who come from other ethnic backgrounds.

So yes, I absolutely think you are being way too "harsh."

[ztemhead]

(an "I haven't read the thread" post)

Obama fucking rocks. He's made the GOP look stupid without even trying. Forget what her actual views are, they are bound to oppose her regardless, BUT they can't block the nomination because they're busy on the other hand pandering to women and hispanics. All they can do is whine like the out of power babies they are.

My only real concern is whether she's liberal enough? If we're going to brand her with the latina stick, I'm forced to think about other 54 year old middle class latinas I know, and they tend to be a lot more conservative than you'd think. Maybe we're replacing a sleeper Liberal with a sleeper Conservative here.

Regarding her record, I'd tread carefully about making up your mind based on a couple pages from CNN dot com, or any other publication for that matter. When I took con law we used to break down SCOTUS decisions at the rate of one a week, and still they were often prone to misinterpretation.

[The_BlauerDragon]

My only real concern is whether she's liberal enough?

:stunned:

Maybe we're replacing a sleeper Liberal with a sleeper Conservative here.

One can only hope. I doubt it though. She seems to be exactly as advertised. :cry:

[Elrostar]

The idea of SCOTUS justices is that they are not political. Their independence from politics is because of their lifetime appointment.

My suggestion further up-thread was a way of dealing with this issue (18 year single terms), but while it's an interesting exercise in speculation, I just don't see it ever happening. Changing the US Constitution is just too difficult.

Reading John Yoo's little editorial piece, I'm both amazed and astonished. He seems to have no concept of self-awareness, for one thing. Accusing anyone else of bending the law to suit their purposes is just mind-boggling, given his history.

For another, I'm impressed that he comes right out and says Souter is a bad SCOTUS justice. And saying that he's disappointed that she won't be like Scalia, Thomas, Bork or Posner, doesn't exactly seem like something that a lot of people would be unhappy about?

Regarding the decisions of hers that have been overturned. I can't help but notice that while a few have been overturned by the court as a whole, quite a few have been along the usual 5-4 split. That simply suggests that she's a liberal justice who would tend to vote like the person she's replacing. What's the big deal about that?

The more interesting thing will be if we get a conservative retiring. Or what happens when Kennedy retires? That's going to be the big one, so to speak.

[DanteGabriel]

Glenn Greenwald, who has had no qualms at all about criticizing Obama when he disagrees, likes the Sotomayor pick:

It is very encouraging that Obama ignored the ugly, vindictive, and anonymous smear campaign led by The New Republic's Jeffrey Rosen and his secret cast of cowardly Eminent Liberal Legal Scholars of the Respectable Intellectual Center. People like that, engaging in tactics of that sort, have exerted far too much influence on our political culture for far too long, and Obama's selection of one of their most recent targets both reflects and advances the erosion of their odious influence. And Obama's choice is also a repudiation of the Jeffrey-Rosen/Ben-Wittes/Stuart-Taylor grievance on behalf of white males that, as Dahlia Lithwick put it, "a diverse bench must inevitably be a second-rate bench."

Obama has also ignored the deeply dishonest right-wing attacks on Sotomayor, beginning with the inane objection to her perfectly benign and accurate comments on videotape that appellate judges, as distinct from district court judges, "make policy." Lawyer Anonymous Liberal thoroughly eviscerated that line of attack as the shallow and deceitful argument it is. A similar avenue of certain attack -- that Sotomayor said in a 2001 speech that a female Latina judge has experiences that can inform her view of cases -- is equally frivolous. There are a whole range of discretionary judgments which judges are required to make; does anyone actually doubt that familiarity with a wide range of cultural experiences is an asset?

...

But judging strictly from what is known, Obama deserves substantial credit for this choice. There were choices available to him that would have been safer among the Respectable Intellectual Center (Diane Wood) and among the Right (Elena Kagan). At his best, Obama ignores and is even willing to act contrary to the standard establishment Washington voices and mentality that have corrupted our political culture for so long. His choice of Sotomayor is a prime example of his doing exactly that, and for that reason alone, ought to be commended.

http://www.salon.com/opinion/greenwald/2009/05/26/sotomayor/

[Elrostar]

There was a fascinating topic that came up in a radio show a couple of weeks ago which talked about the effects of having women on the courts. A comprehensive study of appeals court decisions (10,000 or so) compared decisions made by male and female justices in all sorts of different cases.

Apparently the only area in which they differ are sexual discrimination cases where women justices are 10% more likely to find for the plaintiff. In all other cases there is no difference.

This goes across liberal, conservative, everything. Same difference. The reason posited is that female justices are more likely to empathize with the situation.

The even more interesting finding was that men were 15% more likely to find for the plaintiff in sexual discrimination cases when there was a woman on the panel. This leads back to the fact that Sandra Day O'Connor said she found it tremendously beneficial to have Thurgood Marshall's experiences to hear about when they were in deliberations. She said that he taught her a great deal. Apparently the presence of a woman on the court can have a similar effect on male justices.

What is important to note is that they didn't find any difference for sexual harassment, interestingly, so it's not that women are just 'softer', so to speak. Or that male justices felt that they needed to be more careful when there was a woman on the panel, so to speak.

Anyway, it's a very interesting study, and its results show that there really are incredible benefits to the court to having minorities and women on the court in ways which one might not off-hand have thought.

Justice Breyer's complete lack of understanding of what it meant for a thirteen year old girl to be strip searched at school was perhaps something that indicated the inability to connect with people. He likened it to getting undressed for gym class.

[DanteGabriel]

The even more interesting finding was that men were 15% more likely to find for the plaintiff in sexual discrimination cases when there was a woman on the panel. This leads back to the fact that Sandra Day O'Connor said she found it tremendously beneficial to have Thurgood Marshall's experiences to hear about when they were in deliberations. She said that he taught her a great deal. Apparently the presence of a woman on the court can have a similar effect on male justices.

What is important to note is that they didn't find any difference for sexual harassment, interestingly, so it's not that women are just 'softer', so to speak. Or that male justices felt that they needed to be more careful when there was a woman on the panel, so to speak.

Anyway, it's a very interesting study, and its results show that there really are incredible benefits to the court to having minorities and women on the court in ways which one might not off-hand have thought.

Justice Breyer's complete lack of understanding of what it meant for a thirteen year old girl to be strip searched at school was perhaps something that indicated the inability to connect with people. He likened it to getting undressed for gym class.

I see your "rational reasons why it may be good to have a female Hispanic justice," and raise you one media statement from Senator James "Top Tier Candidate for Biggest Troglodyte in the Senate" Inhofe (R-OK):

In the months ahead, it will be important for those of us in the U.S. Senate to weigh her qualifications and character as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences.

http://tpmdc.talkingpointsmemo.com/2009/05...der.php?ref=fpa

I wonder if he was similarly concerned that Roberts not be unduly affected by his own blatant and undeniable white maleness?

[Altherion]

I wonder if he was similarly concerned that Roberts not be unduly affected by his own blatant and undeniable white maleness?

I think there would be far more concern for that if Roberts had ever said something like this:

"Our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise white man with the richness of his experience would more often than not reach a better conclusion than a Latina female who hasn't lived that life."

http://www.cnn.com/2009/POLITICS/05/26/sot...sume/index.html

In fact, if Roberts (or any white man) had said something like that, I am pretty sure he would never make it to any federal court, never mind the Supreme Court.

[Altherion]

Of course it could never come from someone like Roberts (I said that in my post).

All I see her saying is that she hopes that rich white men do not automatically come to better conclusions. She doesn't say that she will be better or that minorities will be better.

Read it again:

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

[DanteGabriel]

I think there would be far more concern for that if Roberts had ever said something like this:

http://www.cnn.com/2009/POLITICS/05/26/sot...sume/index.html

In fact, if Roberts (or any white man) had said something like that, I am pretty sure he would never make it to any federal court, never mind the Supreme Court.

What was the context of the original quote, the one before you cut and pasted it for effect? Was it in reference to a particular case?

[Altherion]

I'd only read what you quoted. Does she say what you just posted here right after what's in your first quote from the article?

What was the context of the original quote, the one before you cut and pasted it for effect? Was it in reference to a particular case?

No, it is not in reference to a particular case -- it's from a speech. Here is the full quote from CNN:

At a 2001 U.C. Berkeley symposium marking the 40th anniversary of the first Latino named to the federal district court, Sotomayor said that the gender and ethnicity of judges does and should affect their judicial decision-making. From her speech:

"I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society....

"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....

"Our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life." [u.C. Berkeley School of Law, 10/26/2001]

Except the last sentence (which is an overt insult directed at all white men), what she says is not unreasonable: ideal justices would be completely impartial, but every human being comes from a particular background and can only try to be impartial. However, based on the tone of the last paragraph, it is not clear just how much of an effort she will make to be impartial so Inhofe's statement is not unreasonable.

[Altherion]

I am beyond confused because the last sentence of the paragraph is different from your first quote to your third. Does she both say that a rich white male ought make better decisions than a Latino woman and also say the opposite?

No. I switched the races and genders in my first post to show what Roberts (or any white man) saying something of this sort would sound like. I assumed people had actually read the CNN article and thus would understand.

[aeu]

All I see her saying is that she hopes that rich white men do not automatically come to better conclusions. She doesn't say that she will be better or that minorities will be better. Just that everyone is somehow influenced by their background.

She is probably trying to say everyone is influenced by their background, but she definitely overshots the point and ends up implying the bolded part. When you say "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male", you open yourself to critism.

She probably has a point, but she should have been able to express it better.

[Altherion]

She is preaching to a choir in that speech (the occasion is a symposium in honor of the first Latino federal district judge) so it is partially understandable. However, it is still not a nice thing to say and it does bring up questions.

[Edda van Heefmstra Ruston]

Adding context really does help. What if I took different snippets from the same speech? The sentence in question does still seem harshly worded, but it's hardly a condemnation of white male judges as a whole.

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

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

...

[O]ne must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

...

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. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations.

There are certainly valid arguments to be made with this appointment, her record as a whole, and with this speech. I think that most (not all) of the outrage about that one sentence is coming from people who have not bothered to look up the rest of what she said, and are unfairly separating it from the rest of her content.

Do I think it could have been better worded? Absolutely.

Am I giving her a too-generous interpretation of that sentence, applying what I think it means (or what I would like it to mean) to the bare-bones reading? Entirely possible, though obviously I don't think so.

Are there legitimate concerns about her appointment, record, and speeches? Of course. I think that sentence is a reasonable point of contention, just not when it's unfairly isolated from the rest of it. [i also think that, knowing the speech would be printed, she should have been more careful with her wording if she didn't want to give that kind of impression, as it is easy to find a sentence or two and quote just that.]

Do I think Rush, at least, is deliberately over-reacting and shutting off reasonable debate about the quote, among the rest of her appointment/record/etc? Indubitably.

[The_BlauerDragon]

She is preaching to a choir in that speech (the occasion is a symposium in honor of the first Latino federal district judge) so it is partially understandable. However, it is still not a nice thing to say and it does bring up questions.

So, if some rich white politician made a similar (with gender and race reversed) remark while speaking at a klan rally, would that be equally understandable? I know I'm drawing a very broad (and admittedly skewed) comparison here, I'm just trying to put things into perspective and gain some level of understanding as to what the limitations are for when it is acceptable to issue openly prejudiced remarks and when it is not.