SCOTUS pick: Sonia Sotomayor

[Kenscollick]

Looks like a great defender of the Constitution


Memorandum
TO: JCN Members and Interested Parties
FROM: Wendy Long, Counsel to JCN
DATE: May 26, 2009
RE: Obama Supreme Court nominee Sonia Sotomayor
• President Obama has threatened to nominate liberal judicial activists who will indulge their left-wing policy preferences instead of neutrally applying the law. In selecting Judge Sonia Sotomayor as his
Supreme Court nominee, President Obama has carried out his threat.
• Judge Sotomayor will allow her feelings and personal politics to stand in the way of basic fairness. In a recent case, Ricci v. DeStefano, Sotomayor sided with a city that used racially discriminatory practices to deny promotions to firefighters. The per curiam opinion Sotomayor joined went so far out of its way to bury the firefighters’ important claims of unfair treatment that her colleague, Judge Jose Cabranes, a Clinton appointee, chastised her.
o According to Judge Cabranes, Sotomayor’s opinion “contains no reference whatsoever to the constitutional claims at he core of this case” and its “perfunctory disposition rests uneasily with the weighty issues presented by this appeal.” Even the liberal Washington Post columnist Richard Cohen expressed disappointment with the case, stating, “Ricci is not just a legal case but a man who has been
deprived of the pursuit of happiness on account of race.”
o Sotomayor’s terrible decision in Ricci is under review by the Supreme Court and an opinion is expected by the end of June.
• Sotomayor readily admits that she applies her feelings and personal politics when deciding cases. In a 2002 speech at Berkeley, she stated that she believes it is appropriate for a judge to consider
their “experiences as women and people of color,” which she believes should “affect our decisions.” She went on to say in that same speech “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.” She reiterated her commitment to that lawless judicial philosophy at Duke Law School in 2005 when she stated that the “Court of Appeals is where policy is made.”
• The poor quality of Sotomayor’s decisions is reflected in her terrible record of reversals by the Supreme Court.
• Sotomayor is a favorite of far left special interest groups. In addition to her record as a hard left judicial activist, Sotomayor has been recommended for the Supreme Court by Nan Aron of the very liberal Alliance for Justice, who stated in a 2004 memo to the Senate Judiciary Committee that Sotomayor had “been through an initial vetting and fit into the criteria that we believe should be the
standard for any Supreme Court justice.”
• The White House is sure to argue that Sotomayor is a “bipartisan pick” because Bush 41 appointed her to the district court: President George H.W. Bush nominated Sotomayor in 1991 only because the New York senators had forced on the White House a deal that enabled Senator Moynihan to name one of every four district court nominees in New York. In 1998, 29 Republican senators voted against President Clinton’s nomination of Sotomayor to the Second Circuit.

 

[bahamaman]

You indicate that Sotomayor will allow her "feelings and personal politics" to stand in the way of fairness.

With all due respect, I suspect you know nothing of the legal issues that arose in the Ricci case. The City of New Haven administered an exam and no African-Americans passed. Under accepted Title VII jurisprudence, when an employer (such as the city) has a policy (taking a test, for example) that has even the unintended effect of discriminating against a protected class, such test is unlawful unless it can be justified by "business necessity". In order to prove business necessity, the City would have to prove that the exam in question gets qualified applicants and, importantly, doesn't exclude potentially qualified applicants. The City was doubtless concerned that it would be hard pressed to demonstrate that the test didn't exclude individuals who could do the job. It probably feared being sued, and decided to throw out the results of the test.

So, the case is a close one, with excellent and supportable arguments on both sides. On the one hand, it is easy to sympathize with the applicants who passed the test. On the other hand, there is clearly a risk that the exam might be judged unlawful and expose the City to expensive litigation.

That Sotomayor came down on the side of the City merely indicates that she made a close call in a difficult case. To conclude that her "feelings" or "personal politics" was the deciding factor is utterly unfair and is suggestive that, just perhaps, you have your own axe to grind.

 

[risabet]

To believe that ANY judge or justice doesn't let personal beliefs intrude into legal decisions is to fly in the face of accepted human behavior. We all bring ideas and opinions into everything we do and the belief that because we wear a black robe changes that is insane.

 

[bahamaman]

One other observation . . .

The original post describes her as a liberal activist judge. That characterization is similar to other statements I hear from politicians, particularly those on the right. For example, how many times have you heard a politician say that he doesn't want judges who make law, to avoid "activism" and to merely decide according to what the Constitution says.

Instead of considering the issue abstractly, perhaps it would be useful to consider a number of hypothetical cases. Each case involves the First Amendment's guarantee of free speech.

1. In the first case, the plaintiff is a producer of breakfast cereals enjoyed by children and the government has passed a law outlawing advertising for cereals that have too much added sugar. The plaintiff argues that its advertising is speech and is worthy of legal protection.

2. In the second case, the person seeking First Amendment protection is a criminal defendant in a lawsuit involving his distribution of obscene materials on the internet. He argues that the state law under which he is being prosecuted violates the First Amendment.

The point of these is not whether (in the first case) "commercial" speech ought to be protected or (in the second) whether pornography is or is not speech. The point, rather, is to suggest that much of the wording of the Constitution is broad, general or downright vague. Thus, every Justice will be called upon to interpret the meaning of words like "speech". And, when a judge interprets words, he or she is necessarily making law. That is what Justices do, they make law.

I suspect what politicians really mean when they denounce "activist", "law making" judges, is that they don't want judges who interepret the Constitution in ways that run counter to their political philosophy.

 

[asindc]

Kenscollick,

If your original post represents the sum total of the information you have about Judge Sotomayor, then you are, with due respect, misinformed about her qualifications and judicial temperment. Much of what has been written about Judge Sotomayor in recent weeks gives only a glimpse of her record, much like comparing a pair of MBL 101Es to your current pair of speakers after listenting to them for three minutes in a noisy environment.

It is interesting that the Ricci case has been distorted the same way the California Supreme Court on same-sex marriage is being distorted now for political reasons. In each case, the court had to decide on a procedural issue (whether it was legally appropriate for the City of New Haven to invalidate the test results; whether the ballot initiative was the appropriate process through which to "revise" the California Constitution) that did not speak directly to the political issue at hand (were the white New Haven firefighters who took the test and passed unlawfully discriminated against by the city when it invalidated the test; should the state of California legally recognize marriages between same-sex couples). This is more often than not the case in appeals courts.

As usual, the various media have reported these significant court cases incorrectly, either through stupidity, laziness, or a combination of both. Bottom line is that any discussion of a judge's role in a particular case cannot be fully understood without deeper knowledge of the case than what almost all media outlets present.

By the way, if you are really interested, take time to research Judge Sotomayor's 2005 Duke Law School speech for the full context of her remarks regarding policy emanating from the bench. Quoting her as saying the "Court of Appeals is where policy is made” is like quoting Robert Harley as saying the "Cambridge Azur 840C is the best CD player under $5,000." It's all about context.

 

[Rich]

Posts like Ken's have little to do with speaking the truth and everything to do with blind partisanship and bashing the other side because, well, they are the other side. It is a shame we can't have a more honest and open debate on real issues in this country instead of constantly playing these partisan charades. By the way, Ken, the political boilerplate you cut and pasted is full of lies, misstatements and poorly-researched half-truths about this very competent judge. I would personally be ashamed to post such tripe in a public forum and pretend that I have a clue what I am talking about if I hadn't personally researched the information myself.

 

[mcmd]

"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."

Is that not racist? If not, substitute any of either "black male", "Muslim", or "Jewish female" (or choose your own group) for "white male" and ask the question again.

It is also interesting that the Supreme Court has reversed three of the five Sotomayor decisions they have heard since she has been on the Appeals Court. While a 60% reversal rate seems rather high, it would be useful to know an average for all appellate rulings before making a judgment. Anyone know how to get that stat?

 

[repman]

Come on lets be real about this, and for that matter anything political.

No matter what side you fall on liberal, moderate ,conservative.

If we are really being honest with ourselves we all see things from our own viewpoint.

Does anyone really believe that Sonia Sotomayor is the absolute best pick for the supreme court or that Clarence Thomas was the best pick of his day.

Now they may be both excellent supreme court justices I cannot honestly say but I will be bold enough to say it has more to do with their ethnic backround and political leanings then anything else.

When George H Bush picked Thomas he was replacing Thurgood Marshall also a black man, now did George pick him because he was the best choice of anyone available or because he was a black man who had conservative leanings?

The same goes for Barrack Obama did he pick Sotomayor because she is the best choice or because she is a woman and a Latino with Liberal leanings

We have played this song many times before all sides do it, how do we solidify the latino and female vote for the next election I know lets appoint Sotomayor.

Its right out of the playbook and so transparent
both of the two major parties do it they work out of the same playbook
its not hidden and you certianly dont have to be a genius to figure it out

Its POLITICS pure and simple.

We will never get the best and brightest people in office as long as these games continue.

Lets face it most people are selfish and only care about their needs and their views with few exceptions.

Just turn on the news, so called unbiased journalists and news reporters do not report the news but their slant of the news everyday.

Im off my soapbox but dont try and argue facts boys when we all know its just Politics and facts have nothing to do with it

 

[risabet]

"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."

Context is everything. Unless you state the specific context in which the quote was made you are deliberately misleading the reader. In this case Judge Sotomayor was referring to cases involving racial bias and sexual bias. In this context one could easily argue that her point was well taken.

Here's the entire statement:

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, 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 not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. 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 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.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one 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.​

 

[mcmd]

Context is everything. Unless you state the specific context in which the quote was made you are deliberately misleading the reader. In this case Judge Sotomayor was referring to cases involving racial bias and sexual bias. In this context one could easily argue that her point was well taken.

I respectfully disagree with your assertion.

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 not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. 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 experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

With the greatest respect, she was specifically referring to Justice O'Connor's statement, not cases involving racial and sexual bias. She plainly states that she's not sure if she agrees with Justice O'Connor. So, it's not enough to have a wise woman on the bench, but a wise Latina woman.

Also, if context is king, you should mention that the statement was made during a speech made at LaRaza, which according to their site is the "largest national Hispanic civil rights and advocacy organization in the United States" which "works to improve opportunities for Hispanic Americans... through its network of nearly 300 affiliated community-based organizations."

Was the Judge pandering to her audience? If not, would a wise "African-American" woman with the richness of her experience reach better conclusions than a Latina?

 

[Rich]

Context is everything. Unless you state the specific context in which the quote was made you are deliberately misleading the reader.

So true, risabet. And it always amazes me how conservatives are masters of taking words and facts out of context for political benefit, although I know both parties do it. Case in point:

It is also interesting that the Supreme Court has reversed three of the five Sotomayor decisions they have heard since she has been on the Appeals Court. While a 60% reversal rate seems rather high, it would be useful to know an average for all appellate rulings before making a judgment. Anyone know how to get that stat?

Mcmd: From the same article you quoted:

Mr. Gibbs dismissed questions about Judge Sotomayor's reversal rate, saying she wrote 380 majority opinions during her 11 years on the appeals court. Of those 380 opinions, the Supreme Court heard five of the cases and overturned her on three.

"The totality of the record is one that's more important to look at, rather than, like I said, some out-of-context or clipped way of looking at it," Mr. Gibbs said.

So out of 380 majority opinions, she has been reversed on appeal only three times! Amazing what difference a little context makes! So she either has a 60% reversal rate . . . or a .7% reversal rate, depending on what data you decide to take into account. Seems to me, since you are judging her qualifications as a judge, you should take all of her decisions into account when determining her reversal rate. Why would you discount 97% of her opinions simply because they were not appealed or granted certiori to the Supreme Court? Unless, that is, you were trying to color her as incompetent by fudging your statistics. Hmmmm?

 

[mcmd]

And it always amazes me how conservatives are masters of taking words and facts out of context for political benefit, although I know both parties do it.

...And now for my next trick... Thanks for implying I was a "master", but that's hardly the point here. Besides, I'm a classic liberal. You assert I am biased, yet you use the term "conservative" as a derogative in describing what you believe my position is. Is this not in itself biased?

So out of 380 majority opinions, she has been reversed on appeal only three times! Amazing what difference a little context makes!

Be intellectually honest. I was clear that of the 5 decisions that were heard by the Supreme Court, 3 were reversed. So, it is a 60% reversal rate. I suspect you might not like the math, but it is factually correct.

Seems to me, since you are judging her qualifications as a judge, you should take all of her decisions into account when determining her reversal rate.

That's really not how the math works. I was also clear that I'd like to know the reversal rate of all Appeals Court judges to see how her reversal rate relates to the average. You know, to give it context.

 

[repman]

[QUOTE=So out of 380 majority opinions, she has been reversed on appeal only three times! Amazing what difference a little context makes! So she either has a 60% reversal rate . . . or a .7% reversal rate, depending on what data you decide to take into account. Seems to me, since you are judging her qualifications as a judge, you should take all of her decisions into account when determining her reversal rate. Why would you discount 97% of her opinions simply because they were not appealed or granted certiori to the Supreme Court? Unless, that is, you were trying to color her as incompetent by fudging your statistics. Hmmmm?


Rich with all due respect you are taking this out of context what I believe is the correct way to look at this is of the 5 submitted 3 were reversed

we can only look at the ones that the supreme court looked at so it is a fair statement that she has a 60% reversal rate of the cases that were taken to the supreme court

If her whole body of work was looked at your statement may make more sense

because the SC looked at only 5 of her cases and ruled against 3 does not mean that if they looked at all of her body of work the percentage would not hold up or be worse you nor I know the answer to that

As I stated in my earlier post everyone will see this from the viewpoint of their political leanings and you will never win this battle with facts people see it as they want to

you stated that conservatives take things out of context for political benefit then went on to say but both parties do that.

you have proven what I am saying its all how you view something

 

[risabet]

With the greatest respect, she was specifically referring to Justice O'Connor's statement, not cases involving racial and sexual bias. She plainly states that she's not sure if she agrees with Justice O'Connor. So, it's not enough to have a wise woman on the bench, but a wise Latina woman.

Did you actually read what was written, I quote:

. . . seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women.

Sotomayor then goes forward to the quote by O'Connor. The totality of the statement is what is important. It is clear to this reader that she was relating O'Connor's statement to cases specifically regarding race and gender discrimination. Once again I quote:

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 not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure (Italics added) 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 experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Also, if context is king, you should mention that the statement was made during a speech made at LaRaza, which according to their site is the "largest national Hispanic civil rights and advocacy organization in the United States" which "works to improve opportunities for Hispanic Americans... through its network of nearly 300 affiliated community-based organizations."

So

Was the Judge pandering to her audience? If not, would a wise "African-American" woman with the richness of her experience reach better conclusions than a Latina?

I really don't see that as the point. Sotomayor was simply stating that a minority woman would view these cases differently than a majority male. Could anyone reasonably argue that the circumstances of one's life don't affect one's legal, moral, or ethical views, whether you agree with those views or not?

 

[mcmd]

Sotomayor was simply stating that a minority woman would view these cases differently than a majority male.

Not exactly. She said that a Latina woman would "more often than not reach a better conclusion than a white male." This is not putting words in her mouth as I believe you are trying to do, it is simply pointing out the elitism and racism inherent of her statement. Her extremism is showing!

That being said, she is likely to be confirmed and we will continue to get the government we deserve. I've thoroughly enjoyed the discussion, thanks!

.

 

[Rich]

If you are evaluating someone to be a Supreme Court Justice, you need to get an understanding of how they have performed in a similar job (in this case, the job of Appellate Court Justice). To do so, you must look at the entirety of their body of work, not a select three or five cases.

Honestly, if over the course of her career, and her 380 majority opinions as an Appellate Justice, her decisions were only appealed to the Supreme Court on five occasions (yes, for those of you that are so hung up on math, that's 5 out of 380, or 1.3% appeal ratio) then I would say it is pretty clear she has done a tremendous job.

Who even cares what percentage of her cases that were appealed got overturned on appeal? It is such a low overall number as to make the statistical significance of that figure utterly meaningless. Now if she had about fifty cases appealed, we might get a more reliable gauge. But seriously, only five cases? That is an incredible record. She is obviously making correct decisions most of the time if people aren't appealing them. Isn't that one of the qualities we want in a judge, so the system isn't overloaded with appeals?

I guess that is why so many republican Senators voted for her confirmation the last two times she came before the Senate on Judicial Appointments. If you guys really want to tar and feather this prolific and extremely competent judge, you are going to have to do better than political rhetoric, out-of-context statements, and irrelevant facts.

 

[mcmd]

If you guys really want to tar and feather this prolific and extremely competent judge, you are going to have to do better than political rhetoric, out-of-context statements, and irrelevant facts.

Have you ever heard of the term "borked"?

Perhaps the Judge is simply not politically correct "enough" for my taste. I mean, she doesn't appear to have the requisite empathy for ethnic groups other than Latina women.

 

[Rich]

Not exactly. She said that a Latina woman would "more often than not reach a better conclusion than a white male."

No. Actually, if you read her statement, she said that she "hoped" a Latina woman with her diversity of experience would reach a better conclusion than a white male. Not that she necessarily would. Just that she hoped she would. Sometimes one word can make a big difference to context.

 

[twich54]

Speaking of 'taking out of context' .....I wonder how Justice Thomas is making out with that "can of Coke"..... or was that "a can of worms" :devil:

Don't 'ya love politics !!

Myself........if this one sentence is all "Newt the Gewt" and the rest of these political half-witts have to go on then they should all be ashamed, myself a life long Republican, I already am !

 

[asindc]

Rich with all due respect you are taking this out of context what I believe is the correct way to look at this is of the 5 submitted 3 were reversed

we can only look at the ones that the supreme court looked at so it is a fair statement that she has a 60% reversal rate of the cases that were taken to the supreme court

If her whole body of work was looked at your statement may make more sense

because the SC looked at only 5 of her cases and ruled against 3 does not mean that if they looked at all of her body of work the percentage would not hold up or be worse you nor I know the answer to that

As I stated in my earlier post everyone will see this from the viewpoint of their political leanings and you will never win this battle with facts people see it as they want to

you stated that conservatives take things out of context for political benefit then went on to say but both parties do that.

you have proven what I am saying its all how you view something

I've made my views about how Judge Sotomayor's career and life should be considered in my first post in this thread, so I won't rehash here.

I do want to clarify, however, that the Supreme Court reviews probably about 300 of the approximately 7,000 or so cases it receives requests for each year. Of these, the Court grants certiorari in only maybe about 100 each year.

When the Court declines to grant cert, it is because the issue was not significant enough for their consideration (whether they thought the lower court got it right or not) or they simply thought the lower court got it right. There are 13 U.S. Courts of Appeals. A case may also be granted cert directly from a District Court if found to be significant enough, and also directly from a state's Supreme Court. By the way, it only take four Justices to vote yes for a cert petition to be granted.

Judge Sotomayor became a U.S. District Judge in 1992 and has been a U.S. Court of Appeals Judge since 1997, so it is more than likely that the Court has reviewed more than five of her courts' rulings in which sided with the majority. The point is that knowing that the Court granted cert in only five such occasions does not tell us how many of those kinds of cases the Court considered over the past 17 years.