Sotomayor, The "Suprema" Choice

Federal judge Sonia Sotomayor's nomination to the Supreme Court is front page news around the country and especially in her hometown of New York. And as Republicans gear up to voice criticism of her, Democrats are ready—and excited. The former executive director of the Democratic National Committee Mark Siegel tells the Daily News, "I'm not only ecstatic, I pray that the Republicans do a frontal attack on her. Thirty-one percent [of the Hispanic vote] is too much for them. I want them to go down to three." And a Florida pollster who surveyed Hispanic voters for Obama's campaign told Politico, "The picture of an African-American president standing next to a Hispanic woman as his first choice for the Supreme Court — that picture is the worst nightmare for the Republican Party."

Of course, Republicans are ready to battle and pore over Sotomayor's decisions (Rep. Lamar Smith, a Texas Republican, worries that she has shown "personal bias based on ethnicity and gender"). The most-mentioned case is a reverse discrimination case brought by white firefighters against a New Haven, CT fire department.

In Ricci vs. DeStefano, 20 firefighters (19 white, one Hispanic) sued the fire department after the department threw out results from a test that would have qualified them for promotion because no blacks scored high enough on the test to qualify for a promotion. The fire department, which purchased the test from a consultant, and city worried that basing promotion for a supervisory role solely on a test would be improper. (Slate on the case, and here's an LA TImes opinion piece here) Sotomayor and two other judges ruled against the firefighters, but the case is now...at the Supreme Court.

The NY Times looks at her other decision and finds them, "marked by diligence, depth and unflashy competence. If they are not always a pleasure to read, they are usually models of modern judicial craftsmanship, which prizes careful attention to the facts in the record and a methodical application of layers of legal principles... But they reveal no larger vision, seldom appeal to history and consistently avoid quotable language." The Times also finds Sotomayor's brief summary on the Ricci case puzzling.

In the opinion section, the NY Times proclaims, "Based on what we know now, the Senate should confirm her so she can join the court when it begins its new term in October." The Post is (of course) more hesitant and actually wonders, "Did Obama make the most of his first opportunity to push the High Court to the left?" The Wall Street Journal says, "Republicans can use the process as a teaching moment, not to tear down Ms. Sotomayor on personal issues the way the left tried with Justices Clarence Thomas and Sam Alito, but to educate Americans about the proper role of the judiciary and to explore whether Judge Sotomayor's Constitutional principles are as free-form as they seem from her record."

And the Daily News is thrilled, "Barring the very remote possibility that something untoward crops up, let's get on with the making of U.S. Supreme Court Justice Sonia Sotomayor, alumna of Cardinal Spellman High School, giving the Bronx pride of place along with Brooklyn (Ruth Bader Ginsburg) and Queens (Antonin Scalia) on the world's most august judicial panel."

Contact the author of this article or email tips@gothamist.com with further questions, comments or tips.

By Jen Chung in News on May 27, 2009 11:35 AM

Comments [rss]

numbertwopencil

Ugh. Why Gothamist comments go downhill so fast? Again, I'll guess it's because The Manhattan Institute interns have a lot of time on their hands. Maybe taunting Gothamist readers is a just a game for bored interns. Dunno. Seems to me that our hosts would try to deal with it if they want to stay in business but I don't know nothing about babying a blog.

Regardless, my sympathies are with the dirty hippies in this case despite the ridicule and name calling, because how can you argue with someone, in a civil fashion or not, when they post a list of Red State talking points that, as usual, don't stand up to to the least scrutiny? In the battle between everyday reason and the alternate wingnut world, I say "Go hippies! Beat the morans!" It's really hard to be civil to people who lie as a matter of course and, unfortunately, what's left of movement conservatism is built on smoke and mirrors.

No, I'm not going to bother knocking down every point in that RedState article. And, yeah, it's important someone do it if they are going to say the wingers arguments about Sotomayor are wrong. As it happens, my work has been done for me. Take a look at the abstracts of Sotomayors opinions on Scotus blog. The detailed accounts of her judicial opinions are devastating to every point made or quoted by Keetoo. Start here:

http://www.scotusblog.com/wp/judge-sotomayor’s-opinions-with-dissents-–-part-i/

http://www.scotusblog.com/wp/judge-sotomayors-appellate-opinions-in-civil-cases/

There are at least three more finely detailed reports of her opinions on Scotus blog, all of which clearly show that Keetoo and Co. are ignorant, lazy, and/or disingenuous. You can, of course, argue with the Scotus authors about their characterizations of Sotomayor's opinions but you'd better be ready to quote from the court documents at length because the Scotus work leans heavily on, doh, Sotomayor's actual words and the context of the case she's writing about.

...take a look at the real facts that explain our opposition to this candidate...

The "real facts" (as opposed so some other kind of facts, thank you very much) show that Sotomayor, based on her existing judicial opinions, is a middle of the road justice. She's fairly strict about some things, say, first amendment rights, legal/constitutional precedent, and a little looser about other things, say, the rights of corporations and institutions. She cuts left and right. She's a very thoughtful and through judge but not always great with big picture legal theory. She's no activist, even by the rather twisted standards of, say, the Federalist Society. Reading her opinions--as opposed to reading RedState--you can see why GHWB appointed her to the bench. She has a long track record and, for the most part, it's a fairly conservative track record with some obvious exceptions that are more or less in line with the current Democratic party. I suspect she'll end up replacing Souter without anyone missing a beat.

valeriob

Sotomayer v J.Lo:

http://tinyurl.com/po9wpy

inoyourider

I hope they vote this bigot down.

Elm Street

nothing posted here has backed this accusation!

So she is a "bigot" just because she is the one that doesn't favor the republican ideology a priory?

Dogmatism and inflexibility is ok if you are a republican.

No flaws even though it those interest are not remotely democratic.

This country is fed up with the ring wing to the point of division. Guess which part would get into the future being part of the international arena and which one will be a dogmatic war state where most are poor and ignorant?

S.D.

"So she is a "bigot" just because she is the one that doesn't favor the republican ideology a priory?"

Apparently that and an out of context sound bite.

I'm shocked, shocked I say, that they don't try to link her more to 9/11...

NannyState

She'll be the best thing to hit the Supremes...since Diana Ross?

SP

Here's a dose of REALITY for you, concerning activist judges:

Two surveys of the Court's decisions put the lie to the idea that "judicial activism" is the bailiwick of liberals. One of them, conducted by Yale Law Professor Paul Gewirtz and Yale grad Chad Golder, reviewed Supreme Court rulings from 1994-2005. In this period, the Court either struck down or upheld Congressional statutes (or provisions of those statutes) in 64 cases:

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63%

Kennedy 64.06%

Scalia 56.25%

Rehnquist 46.88%

O’Connor 46.77%

Souter 42.19%

Stevens 39.34%

Ginsburg 39.06%

Breyer 28.13%

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

Go fuck yourselves, you bunch of misinformed lying sacks of shit.

felixthecat2

good post, thanks

Kreetoo

EastRiver is right to be done with you, SP. You proved my point effortlessly. While myself and others are trying to engage in civil conversation all your comments end with "STFU you lying sacks of shit" or "reading is difficult for you" or "go fuck yourselves". Congratulations, you have vindicated my comments. I can have a civil conversation with anyone who disagrees 100% with me. It is educational and enlightening to debate opposing ideas. But when all you can do is name-call there is no point.

As to your multiple links and your "smoking gun" that conservative judges are the most "activist", you are using an old trick, whether you know it or not. Originally the term "activist judge" was coined not to label one who overturned Congressional statutes, but rather one who used his or her power of the bench to expand federal powers beyond their existing scope and/or to establish new limits on individual behavior. This has typically been the purvue of liberal judges. But the media (see: your NYT article) and people like you are trying to re-brand the phrase "activist judge" mean something different so that it applies to conservative judges and you can lean back and say "nya nya, who's the activist now??"

Take a case in point, Gonzales v. Raich, case no. 03-1454, where the Supreme Court ruled 6-3 that federal marijuana laws trump state medical-marijuana statutes. The three most conservative judges supported the state legalization laws, while the most liberal judges voted for continued marijuana illegality under federal law, thereby basically saying that the feds have carte blanche to regulate intra-state commerce. Clarence Thomas (your so-called super-activist) sums it up thusly:
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers.

Are you starting to see what I'm talking about? Or are you still so single-minded and blinded with hate for anyone who opposes you that you will once again dismiss my arguments as the rambling nonsense taken from the "Rush Limbaugh Party talking points"?

Speaking of Limbaugh, I'd like to close with part of an article that his brother, David Limbaugh, wrote. Because, quite frankly I can't say it any better than he did:

[Emphasis mine]

"But for all his [Washington Post columnist E.J. Dionne, Jr.'s] seeming concern over the separation of powers, does he understand that an independent, non-political judiciary is indispensable to it? (It is not supposed to be an ideological check on the executive and legislative branches, but a systemic check against constitutional abuses inflicted by those other two branches.)

Or is E.J. just cynical, believing that regardless of what the Constitution provides, the liberal policy agenda justifies any means of attaining it, including ignoring the Constitution, when convenient?

It's hard to take liberals seriously when they declare that President Bush's judicial nominees must be respecters of the Constitution and not conservative ideologues.

How can liberal senators, such as Chuck Schumer, expect to pass the laugh test when decrying the intrusion of political ideology into judicial decisions as they openly defend such a practice when it emanates from their side?

Democrats have long considered the judiciary the third policy-making branch to compensate for their consistent failure to control the other two branches. Only recently have they begun to urge that the president's judicial picks be those who will honor the Constitution. It's not just their insincerity that's offensive, but also their obvious belief that the public is clueless enough to fall for their deception.

If appellate justices were to honor their constitutional role, they would interpret rather than make law, which would inevitably result in the reversal of precedent that has bastardized the Constitution in furtherance of policy ends.

We're not just talking about reversing the abortion decisions, which would not automatically illegalize abortion, by the way, but return the issue to the states. Consitutionalist judges would also honor the Framers' concept of federalism and resist the temptation to impose federal policy on the states in derogation of states' rights on other issues. And they would hopefully restore a sane interpretation of the Commerce Clause, which has been one of the main culprits activist judges have used in expanding federal power to a degree only the anti-Federalists anticipated.

Conservative jurists don't see the judiciary as a policy-making branch, but as a law-interpreting institution that will only influence policy to the extent that it reverses precedent established by activist judges, most of whom – over the past 50 years – have been liberals.

If Democrat senators were sincere in their insistence that the president's appointees respect the Constitution, they would enthusiastically confirm all nominees in the mold of Antonin Scalia and Clarence Thomas.

Source

SP

You are a lying sophistic sack of shit. I have no qualms with saying that and I will continue to denounce you at every turn. The funny thing is, you don't even realize that you and your ilk are digging your own graves. You have proven nothing other than you own stupidity, dishonesty and bigotry. "civil discourse" my ass. I hope you get hit by a bus.

S.D.

"confirm all nominees in the mold of Antonin Scalia and Clarence Thomas."?

Antonin Scalia, the man who thinks Torture does NOT violate ‘Cruel And Unusual Punishment’ Provision of the Constitution?

That's your idea of a good example?

Ooookkkkkk...

Ignoring that you refer to Redstate, the site that wrote "Jesus would have OK’d water boarding", you seem to have, um, interesting ideas about what makes a good judge.

I suppose the Civil Rights rulings are an example of "Activist Judges" too, right?

BTW, I'll never tell you to "STFU". You're free to say whatever you like.

S.D.

Interesting, Can we get a link?

EastRiver

Judicial activism is not simply defined by willingness to overturn Congressional law.

SP

Actually, that is the most salient definition of judicial activism.

Here is the original article:

http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html

EastRiver

No, it's one of several things the court does that could be construed as "activist". If the Times was going to go through and do the math out to two decimal places it might have been more interesting to focus on more than 64 provisions over more than a decade. They might have looked at overturning state laws as well. Or a case where a specific law is not overturned. I don't believe any statute was overturned in Kelo v. City of New London.

SP

Oh, and the Times didn't do the study, they just published it. The study was done by Paul Gewirtz, a professor at Yale Law School and Chad Golder who graduated from Yale Law School in May. I know, you are right winger, so reading is difficult, but please do try to keep up.

EastRiver

I'm done with you. I thought we were actually having a civil conversation for once and then I caught your last two responses so I just deleted what I was going to say. It's funny that you think I'm a "right winger" because you honestly don't have the slightest clue what I believe. I really wanted to have a discussion about the definition of "activist".

I seriously wonder why you can't have a conversation that doesn't result in you hurling insults or STFU. You're so closed minded to anything that doesn't conform to your preconceived ideas, most of which are simply the regurgitated thoughts of others. And yet try to portray yourself as intelligent and enlightened. Ironic. Maybe you should go hang out at Daily Kos where everyone will be exactly like you. It would certainly make this place a lot nicer.

SP

Your track record of comments and opinions speaks for itself. You are a wingnut. And apparently a cry baby too. Keep memorizing to your Rush Limbaugh Party talking points.

EastRiver

My track record? Seriously, point to something I've said that is truly right wing. Pointing out flaws in your arguments doesn't make me right wing. Asking you to elaborate your positions doesn't make me right wing. It does mean you could try harder and not resort to profanity and name calling. And it's not because I'm thin skinned. It's because it makes you look stupid and it side tracks the discussion. Honestly, do you act like this around other people or do you reserve this juvenile behavior for the internet? I have to wonder how you manage to hold down a job although I suppose you could be a defense attorney. Scream as much as possible and try to slander anyone that gets in your way thinking that it means you're winning the discussion. Like saying I am quoting Limbaugh? Please. I have never once listened to that windbag. This is just another of your over generalizations. It's your way of ending any serious discussion. Slap a label on someone and declare yourself the winner. That's what Limbaugh does to Liberals. Funny, you two have something in common.

Kreetoo

Rule 5: Ridicule is man’s most potent weapon. It’s hard to counterattack ridicule, and it infuriates the opposition, which then reacts to your advantage.

-Saul Alinksy, "Rules for Radicals", 1971