SCOTUS appointment thread

[Bittersteel]

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.

You have a habit of drowning sane points in a sea of nonsense.

Were her comments insensitive and poorly phrased? Yes.

Is your comparison absolutely idiotic? Yes.

[The_BlauerDragon]

You have a habit of drowning sane points in a sea of nonsense.

Were her comments insensitive and poorly phrased? Yes.

Is your comparison absolutely idiotic? Yes.

The absurdity was the point entirely. My question is at what point does it stop being absurd and become acceptable? To me, one example is just as damning as the other.

[potsherds]

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.

This is crap. My interpretation of her quote was that she hoped an older wiser person would be capable of making a better decision than a younger (and hypothetically less-wise) one. My gods, some of you are going out of your way to be offended. It'd be funny if it wasn't so irritating.

[Altherion]

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.

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.

Ordinarily I would agree, but in this particular case, the sentence really is almost entirely separate from the rest of the speech. The speech itself is perfectly reasonable -- nothing she says below is controversial. It's downright bizarre.

This is crap. My interpretation of her quote was that she hoped an older wiser person would be capable of making a better decision than a younger (and hypothetically less-wise) one. My gods, some of you are going out of your way to be offended. It'd be funny if it wasn't so irritating.

No. There is absolutely no mention of age in the quote at all and thus your interpretation inserts it without any basis for doing so. As stated, the sentences implies that a wise Latina woman's life is somehow "richer" in experience than a white male's life, thus allowing her to make better decisions. There are no further qualifiers on either the Latina woman or the white male.

[Altherion]

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?

Yes, of course -- what else would you expect?

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.

Overtly prejudiced remarks and actions of minorities and historically disadvantaged groups are far more acceptable than the same remarks and actions would be if they came from majorities and/or historically advantaged groups. However, there are limits (particularly when said minorities aspire to a position of power).

[ztemhead]

reiterating eefa's quote, because I think it bears repeating and further discussion:

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.

FWIW, Sotamayor has a point. the most activist Court's have been made up of all white men. Roe v. Wade was decided by a bunch of white men, as was Brown v. Board, and Miranda v. Arizona. Are there any decisions on the order of those three that the Court has made since it became more reflective of the population as a whole?

I suppose my point is that there's other, more important factors at play here in determining what the court will do in upcoming years, aside from whether the nominee was born with an innie versus outie; and what country her parents were from.

[Ran]

She's not such an ideologue as some want to paint her. See here for a fine example. Many more summaries of cases linked as well. Best way to form an opinion is to look at her decisions, and not the cherry-picked nonsense that the conservatives want to feed you.

[Horus Ex Machina]

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.

The more conservative justices are political animals. I remember Rehnquist had already stated that he would not retire under a Democratic president. Bush Sr. did appoint Souter, so he picked there on merits when he could very well have made today's court an incredibly conservative one.

That said, Sotomayor will be confirmed in a walk. The Republicans cannot be suicidal enough to add to thier deficit with the Latino base by fighting her on racial grounds. If they push the issue with the reverse-discrimination case too much they may box themselves in even further with minorities. Filibustering this nominee will not be good for them but Specter's already endorsed her, and quite a few Republicans who need Latino votes will support a vote of cloture. It will likely be close to 70 votes.

[The_BlauerDragon]

She's not such an ideologue as some want to paint her. See here for a fine example. Many more summaries of cases linked as well. Best way to form an opinion is to look at her decisions, and not the cherry-picked nonsense that the conservatives want to feed you.

Noted. A wider and more encompassing view is always preferable. I'm not so sure that I understand the " cherry-picked nonsense that the conservatives want to feed you" part though.

Had the article been on a conservative, or even moderate site it would make more sense. The article did not come from FoxNews. It came from their politically polar opposite, CNN.

[Horus Ex Machina]

Noted. A wider and more encompassing view is always preferable. I'm not so sure that I understand the " cherry-picked nonsense that the conservatives want to feed you" part though.

Had the article been on a conservative, or even moderate site it would make more sense. The article did not come from FoxNews. It came from their politically polar opposite, CNN.

CNN's way too moderate for this progressive. Fox's political polar opposite is MSNBC.

[Lord O' Bones]

CNN's way too moderate for this progressive. Fox's political polar opposite is MSNBC.

I'm going to say thirded, just because I'm seconding it that hard.

[Paddy]

The absurdity was the point entirely. My question is at what point does it stop being absurd and become acceptable? To me, one example is just as damning as the other.

How, exactly, was the absurdity the point?

Perhaps you can explain how making a speech at U.C. Berkeley School of Law "is just as damning" as making a speech at a Klan rally?

[Ser Scot A Ellison]

Yesterday afternoon on "All Things Considered" there was an interview with one of Judge Sotomayor's law school classmates. He made the point that she loved to argue and chew over esoteric bits of law with other students. The host asked about a hypothetical agument between Sotomayor and Scalia. He said Sotomayor would listen carefully to Scalia, strip away the retoric and emotion from his argument and consider its merits. He said that she would have no problem going with Scalia if she thought the argument he presented, stripped of emotion and hyperbole, was correct. There are much worse things on the court than a learned well considered Justice willing to listen to her colleagues. From what I've heard, on balance, Pres. Obama has made a good selection.

[Guest Raidne]

For me the Ricci case is a disqualifier. How anyone can justify the bizarre, Harrison Bergeron actions of New Haven is beyond me. Since too many of the wrong race win, everyone has to fail? WTF is that?

I specialize in employment law and my husband writes and validates selection tests, so we spent a long time talking about this case, and, in both our opinions, her decision was the right call. First, it was a bad test. Not because it discriminated, but because it wasn't validated and was therefore not defensible in court. Secondly, because it keeps government out of business more than it is already. Lastly, because it would do serious damage to the fabric and structure of Title VII, and though a back door, which does damage to the integrity of the law itself. There's a good thread on this where I, and others, laid this all out in detail.

On the other subject, given the nature of the Supreme Court and it's quasi-oligarchic status, I have no problem making sure it evenly represents certain demographics. We're a pluralistic society, full of political caucuses. Before, we tried to make sure states were evenly represented, as states tended to represent certain cultural pockets. Now, it's race, gender, and socioeconomic status. I think it's fair to take a look at the demographics of the court and try to make sure that all categories are represented. Not just because of diversity (because you don't really get intellectual diversity by picking people of different demographics), but because there's no check on the Supreme Court, making it important that it feel representative to the people it governs, and not a body of rich white men who dictate what our law is to everyone else.

By the way, her specific statement is an utterly uncontroversial restatement of the theory of legal realism, which treats law as a social science as judges as individuals influenced by their experiences and personalities. It's been the prevailing legal theory for the last century. It's been the pushback led by the formalists like Scalia and Thomas (and Rhenquist before them, although he was more moderate) that's been the radical movement of the last couple of decades.

On that note, I would say that it would be nice to have a gay Justice, except that I'm already certain that we've had several.

[Ser Scot A Ellison]

Raidne,

Are you implying we're about to lose a homosexual Justice?

;)

[TrackerNeil]

She's not such an ideologue as some want to paint her. See here for a fine example. Many more summaries of cases linked as well. Best way to form an opinion is to look at her decisions, and not the cherry-picked nonsense that the conservatives want to feed you.

Interesting read. It takes a bit of sifting of the facts to distill this:

In this case, whatever disruption occurred was the result of the police department's decision to publicize the results of its investigation, which revealed the source of the anonymous mailings. It was, apparently, the NYPD itself that disclosed this information to the media and the public. Thus it is not empty rhetoric when Pappas argues that he was terminated because of his opinions.

...but Sotomayor's right on target.

[Elrostar]

Apparently people didn't catch the significance of the study I posted a link to, or its findings. It shows precisely why it is important to have women on the court as well as minorities.

I think it addresses quite well why a latina woman might reach wiser decisions than would a white man as well as why having a latina woman on the court could help other justices on the court in their understanding of situations (as Sandra Day O'Connor said it had been with for her).

One example of a case in which this might come up would be the Ledbetter case (to think of one recent prominent example).

[Annelise]

Damn, Greenwald does not like The New Republic too much.

I read the original Rosen piece on Sotomayor back when on TNR; it was substandard and deserved the skewering, IMO. I dunno about the others he cites.

[Anya, Vengeance Demon]

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.

People have already picked over this quite a bit, so I just want to point out the idiocy of your parenthetical above. How is it "astonishing" how many times she's been overturned by the Supreme Court? She's not a conservative, and the Supreme Court is largely conservative, with no justice in the Brennan/Marshall tradition of liberal jurisprudence. (To be clear, I don't think Sotomayor is another William Brennan either.) For years, the deciding vote has come from a conservative Reagan appointee. So yeah, she's been overruled by the Supreme Court as a result.

And let's be honest for a second. We both know that you've never read Dabit v. Merrill Lynch, 395 F.3d 25 (2d Cir. 2005), and that before this thread you never even considered whether fraud claims based on state law were pre-empted by the Securities Litigation Uniform Standards Act of 1998. I'd also be astonished if you'd ever once figured out how to justify the conclusion that certain kinds of fees paid by a trust were only partly tax deductable given the statutory language of the Internal Revenue Code. Now all of a sudden her position on these and other issues that you'd never once given a second thought before are of deep concern to you? Come on now.

[Annelise]

Re: the number of times Sotomayor has been overturned by SCOTUS:

She has written opinions on at least eight cases that the Supreme Court has later reviewed on appeal, and six of them were either overturned or sent back to lower courts for further consideration. But, aides argue, that ignores the 370 cases for which she wrote opinions and which were never taken up by the Supreme Court. Only about 1 percent of the opinions she has written, they say, have actually been overturned.

Regarding the New Haven case:

Take the New Haven firefighter case (Ricci v. DeStefano), which opponents offer as the primary evidence in the argument that Sotomayor is a judicial activist driven by identity politics. It actually proves the opposite, aides say. They say she was showing "judicial restraint" in joining her colleagues in a unanimous decision to not rehear the case. "She did what appeals court judges do, which is apply precedent," a senior administration official said of the case that is now before the Supreme Court. "That shows the kind of judicial restraint she brought to her job as a court of appeals judge. In the confirmation process, people are going to have to choose between attacking her for not applying the law or applying the law. People may not like the result, but she applied the law."

http://www.slate.com/id/2219117/