May 26th, 2009

Courting diversity: the Sotomayor pick

President Obama has chosen Sonia Sotomayor as the replacement for outgoing Supreme Court Justice David Souter. Even before the pick, it was clear that identity politics would be a huge factor in the decision:

“There is only one thing that is essential for this pick, probably: that she be a woman,” said Thomas Goldstein, a leading appellate attorney and founder of scotusblog.com. “Beyond that, having the candidate be Hispanic would certainly be a plus, because it would add still more to the diversity of the Supreme Court…

Of its 110 justices over the past 220 years, all but four have been white males. The exceptions are two African-Americans (Thurgood Marshall and Clarence Thomas) and two women (Sandra Day O’Connor and Ginsburg).

Because of the fact that Justices of the Supreme Court are appointed for life, personnel change comes to that august body at a glacial pace. There’s no question that women are underrepresented on the Court compared to their present numbers in the legal and judicial ranks, and I have absolutely nothing against Obama’s appointment of a woman, or a Hispanic, or (as in the case of appointee Sotomayor) a Hispanic woman.

I do have trouble with identity politics as a whole, and with the idea that a person’s ethnic/racial background determines how he or she will decide a Supreme Court case. It shouldn’t (and, in Clarence Thomas’s case, it doesn’t—to the rage of the Left). Of course, Sotomayor was chosen by Obama not as a random judge who is both female and Hispanic, but as one who also appears to come with the proper intellectual credentials and, even more importantly, the requisite liberal philosophy.

Is she the very best judge Obama could have chosen, given that he was undoubtedly going to choose only among those of the liberal persuasion? I have no idea. Perhaps she is, perhaps not; I’d have to have read a great many of her legal opinions, as well as the legal opinions of the others who were considered her rivals for the job, before I’d have a realistic appraisal of that.

And what about her remark a while back that “the court of appeals is where policy is made” (see clip here)? She makes an unconvincing little disclaimer after she says that by jokingly adding “I know this is on tape and I should never say that…I’m not promoting it and I’m not advocating it…”, but the rest of the tape makes it clear that she believes the law is something that “develops,” and that appeals court justices help that “development” along.

Is it surprising that these would be the views held by whomever Obama would be tapping for the Supreme Court openings he was slated to fill? Was there ever a single doubt that he would nominate a liberal activist judge?

No. The only mysteries were the exact identity of the person (or persons) he would name, how far they would be willing to go to “develop” the law in the liberal direction, how brilliant or mediocre their legal reasoning would be in doing so, what cases would come up during their tenure to determine the specifics of how the law would change, and whether the majority of the other Justices would come along for the ride. We now know the answer to the first question; the other answers will take some time to unfold.

So Sotomayer’s liberalism is no surprise, nor is her gender nor her ethnic origins. And, as Robert Barnes points out in today’s WaPo, although diversity could have been furthered on the Court by appointing someone who had graduated from a public university (a mindboggling eight of the present group attended either Harvard or Yale), or someone who didn’t come from an appellate court background (all the present Justices have that history, the first time this has ever been the case), that type of diversity is not considered important. Appealing to women and Hispanics most definitely is.

Obama didn’t need to be careful to choose someone who would appeal to Republicans as well, so that they wouldn’t block the nomination. That’s the advantage of controlling the legislature with what is essentially a filibuster-proof majority. It was also part of what I was so concerned about during the 2008 campaign. Back in early October I wrote the following:

That brings to mind the sort of thing I’m most concerned about this election—what Democrats (or any one party) can do with power. It’s not so much the possibility of an Obama Presidency—although that would be bad enough—but the possibility of an Obama Presidency plus a Congress so strongly Democratic that it might even be filibuster-proof. That combination could do very serious damage indeed. It’s also likely that several Supreme Court Justices will be appointed by the next President, which in the case of Obama would skew the makeup of the Court towards liberal activism for decades to come.

This is the prospect we face: all three branches dominated by the liberal side of the political coin, with no checks on their power but the ability of the people to vote them out next time in two of the branches.

Back then, that was the prospect we faced. Now, that’s the reality we face.

[ADDENDUM: Here’s an interesting take on whether Benjamin Cardozo could rightly have been called the first Hispanic Justice. My answer? No. As writer Ilya Somin indicates, “Hispanic” (and many other ethnicities) is a social construct that is somewhat arbitrary. Sotomayor fits the bill; Cardozo—a nonpracticing Jew whose ancestors had emigrated from Portugal long ago—did not.

This is interesting as well:

Democratic Cardozo’s appointment by a Republican president [Hoover] has been referred to as one of the few Supreme Court appointments in history not motivated by partisanship or politics, but strictly based on the nominee’s contribution to law.

Even back then, going beyond politics to pure meritocracy was considered highly unusual.]

[ADDENDUM II: Stuart Taylor has some fascinating things to say about Sotomayor’s views on judicial diversity and on how ethnic and gender identify inform legal decisions.]

34 Responses to “Courting diversity: the Sotomayor pick”

  1. nyomythus Says:

    I see identity politics as anti-liberal, but I know what you mean. Any notion of empathy in determining a judgment of law is very troubling.

  2. The Pick: Sotomayor it is « The Western Experience Says:

    [...] when diversity, empathy and white washing the WASP off of America is the real agenda. Neo-NeoCon calls it identity politics, and Sotomayor, as a person, had little do with the process. This looks like Obama’s strategy [...]

  3. Gray Says:

    The only thing I’m looking forward to is watching the nuetered Senate Republicans roll over and pee on themselves during the confirmation hearings.

    She is Bork-proof by benefit of her race and sex.

    Another dog-turd in the tall grass left by George H. W. Bush.

  4. Gray Says:

    I’ve been agreeing with Nyomythus lately much more than I have been disagreeing with him….

    “Justice” wears a blindfold. She carries a sword and scales. I didn’t know there was a bleeding heart sewn on her sleeve….

  5. nyomythus Says:

    I didn’t know there was a bleeding heart sewn on her sleeve….

    That would make an interesting and telling post-modern statement — not one that the typical post-modernist would be pleased with … we need a sculptor.

  6. Oldflyer Says:

    This nomination creates a conundrum for the devotees of ethnic politics. Is this woman a Hispanic or is she Latina?
    NBC thinks she is Hispanic; she calls herself Latina.

    Seems that awhile back we were instructed by the Latinos to quit calling them Hispanics. You see Hispania is actually part of Europe, from whence comes white oppressors.

    I did not listen to the O’s comments when he introduced her, so I don’t know how he referred to her ethnicity. I do expect that pretty soon we will be instructed to call her a Latina.

  7. Assistant Village Idiot Says:

    The word “empathy” seems to be taking on a variety of meanings. That is in itself a red flag when discussing political issues. Identification, over-identification, sympathy, projection – all of these seem to be creeping in. Putting oneself in another’s shoes can be a noble exercise, but it can also be an enormous self-deception. When we try to understand others in this way we are making an educated guess. There is great risk that this will simply reinforce our own ideas, with the added delusion that others agree. It is possible to pretend to put oneself in the shoes of a thousand others and come up with no new opinions – they all agree with me! Wow!

    Actually, that’s sort of what liberalism is in general, isn’t it?

    To identify with one group is to partly exclude some other group by definition.

  8. Oldflyer Says:

    One more thought. I read elsewhere a quote from Sotomayor during her initial confirmation hearings for the Federal bench that the Constitution should never be bent for any reason. Since she attained her position she has consistently advocated the opposite, and her rulings tend to support that philosophy.

  9. huxley Says:

    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.
    – Sonia Sotomayor Lecture: ‘A Latina Judge’s Voice’

    Then again, white males aren’t just decanted from tubes — they bring a life’s worth of experience to their decisions too, albeit different from our so-called “wise Latina.”

    This is reverse-racism, which is of course racism pure and simple, something that has marked the Obama’s life and campaign from the beginning.

  10. nyomythus Says:

    The manufactured victimhood and identify politics philosophy was want was driving me to the right (parking in the center) in the 90′s.

    Person 1: But but but we have been mistreated.

    Person 2: I’m sorry to hear that, but you know what everyone deals with jerks so don’t let it get to you. You’re better than they are so don’t let it hold you back.

    Person 1: I’m so offended!!

    Person 2: And your point is?

    If you get beyond this point things are going to get really hot.

  11. nyomythus Says:

    I disagree with this, “This is reverse-racism” business — it’s ”racism” plain and simple — but, again I say, I know what you mean.

  12. jon baker Says:

    “emerging international opinion”, “living Constitution” and courts ruling based on identity politics. These things ought not to be so.
    The judiciary is the great threat to the Constitution – far more than the Jihadist.
    Of course, that “emerging international opinion” is likely to bring us into line with an increasingly sharia influenced Europe, especially when it comes to speech laws.

  13. Gray Says:

    Well, she won’t be any worse than that rotten old shirt-lifter, Souter.

    Yet another dog-turd left in the tall grass by Geo. H. W. Bush….

  14. br549 Says:

    We are constitutional republic, a nation of laws. As long as she understands that and acts accordingly, OK by me.

    However, her record up until now speaks very loudly for itself.

  15. nyomythus Says:

    Is it surprising that these would be the views held by whomever Obama would be tapping for the Supreme Court openings he was slated to fill? Was there ever a single doubt that he would nominate a liberal activist judge?

    Not surprise and this was the one very important issue that gave me pause for supporting O’s presidency.

    ‘emerging international opinion’ is likely to bring us into line with an increasingly sharia influenced Europe, especially when it comes to speech laws.

    We have a pretty rock solid foundation on free speech, and conversely for reserving any serious erosion to free speech, some erosion always exist because it’s always being challenged.

  16. JThoits Says:

    There is a bit of chatter on the internet, from sources other than Jeff Rosen, suggesting that Judge Sotomayor may not be the intellectual heavyweight Obama promised. I know she has great credentials but we have already seen that great credentials do not always translate into greatness in job performance.

    I think it is unfortunate that her status as female and latina will make any valid investigation. let alone criticism, of her “judicial chops” evidence of sexism and racism. As an attorney, I know that a determination of Sotomayor’s true grasp of the issues and an assessment of her ability to process information and apply the law to the facts presented cannot be determined solely by reviewing her written opinions. A true and accurate determination of her judicial ability and temperament requires a complete review of the issue presented, the briefs filed, the oral argument presented, the controlling precedent (statutes or case law), the arguments presented to her in a particular case and her comments/questions to the arguing attorneys as well as a review of the resulting opinion written.

    That is why “the word on the street” is valuable. Nobody knows their case better than the attorneys involved and the clerks who perform the actual research and much of the writing for these judges.

    If there is any truth to the chatter, and we won’t get anything but fervent support from the ABA, Sotomayor is unlikely to have much persuasion power over her fellow justices if ever they are on the fence. She will just be a “go along” vote. If that is the case, then the republicans would do well to consider how hard we should hit her in the confirmation hearings.

    The bottom line: we are going to get a lefty. If she is not brilliant…just smart and empathetic and not particularly persuasive, we could do worse.

  17. Gringo Says:

    Apparently “Diversity” has to be filtered through Harvard and Yale.

  18. FredHjr Says:

    Just another Ivy League elitist who thinks we should all STFU and do what they tell us to do. They are gods and we are worms who should feel fortunate to feed on their excrement.

    That is what I think of the legal “philosophy” of “the living Constitution.” If I were any more graphic with my invective, I think neo would remove my post and ban me.

    I have met people like this from the Ivies. When I was a Jesuit seminarian a few of my classmates were Ivy grads. Generally nice guys, but they did have a touch of hauteur – the belief in their own superiority to everyone else.

    There are just too many followers of Lawrence Tribe out there for this country to survive and suffer the destruction they are going to bring upon our nation and the world.

  19. Logern Says:

    OT:

    Because I am so loyal to you neoneo (or trollish) you are the only conservative blogger I am giving this exclusive.

    Obama is staying in my city tonight: Las Vegas. In the 40 year history of Caesar’s Palace, this is the first time a sitting President has stayed the night there. Of the various high-end hotels he could have chosen, Bellagio, Wynn, Encore etc., you can note he chose the one named CAESAR’S PALACE.

    http://en.wikipedia.org/wiki/Julius_Caesar

    Gaius Julius Caesar …master of the Roman world.

    After assuming control of government, he began extensive reforms of Roman society and government. He heavily centralised the bureaucracy of the Republic and was eventually proclaimed “dictator in perpetuity

    There you go. You barely have to think up a post.

  20. PB Says:

    I see identity politics as anti-liberal, but I know what you mean. Any notion of empathy in determining a judgment of law is very troubling.

  21. Perfected democrat Says:

    This is just a warm-up for what’s to come, and certainly the least we would expect from the far left-wing regime which is not slowly consolidating it’s power; Note the article from “Politics”, as alluded to in the great post tonite at Saberpoint, compliments of Stogie…

    “Sotomayor has a record of being rebuffed by the high court. Of the six decisions she was a part of that came before the high court, five were reversed. In the sixth, the court disagreed with Sotomayor’s reasoning.”

    Let’s hope there are still a few honest lefties out there not ready to betray America for the cult of personality which is now running rampant in this country…

  22. SteveH Says:

    Diversity comes from the root word divide. Calling this pigeon holing of thought is much more descriptive of what people like Obama hope for in America.

  23. Artfldgr Says:

    she says that a latina woman can make better decisions than a white male…

    how nice.

    and she also said that judges make the law… does the other parts of the state realize that they are superflous with such judges.

    personally i dont care any more… its all going to the way that people want it, and they didnt have enough misery. they were BORED, and for years have been calling more misery to make their lives have meaning and such… well, they got what they wanted, and they dont realize that maximum misery takes preparation.

    most argue not what should be done, but most argue whether the reason to do something actually exists! as if, when they win the argument, that has any bearing on reality…

    Let’s hope there are still a few honest lefties

    not possible when your only principal is power. might makes right… honesty is for losers in such a society where we dont hold each other up.

    go back to georve keenans long telegram… and you will realize nothing has changed at all… good governance is not even part of their program. they believe that good governance is easy once you have power. so ALL their resources are put in winning by ANY means. by the time they win, they are completely debased of any ability to do a good job at the job they stole by other means.

    this judge… she will make law from the bench with others and we will suffer. WOMEN will suffer the most as they and their desires have to be pushed off to infertile ones, or they have to be destroyed as breeders and those punished with children….

    i dont care… i know about 4-7 people who are planning suicide (not me). these are not abnormalb people, these people were children in these regimes and refuse to have an end to their lives like that. they know that the last act of self control and determination by a free person will be this act… thats sad… and blows smoke up the pc definitions of such acts… where in the text book is that reason? no call for help, just a desire not to sour what was a wonderful life and its memories.

    half of the people wanting to do this and confiding in me are romanian.

    there is no excising this desease

    goodness rules pushed to absurdity cant stand up to no rules and no having to consider the population. they use the people agaionst themselves, and so they prove that a political system that disregards the people is stronger than a free one. why? because a free one is free to be safe for so long they start acting mental. in the absence of the danger that is always present in reality we get mental conditions, just as lack of worm parasites gives us asthma.

    for many people the question may end up being like it was in other times. are you ready to kill your neigbor and eat them? cause historically speaking thats how incompetent they are. the way things are going there is no way to get enough food into cities like ny and chicago. the dance to supply food is a very sensitive and delicate timing thing from companies to people… 4 days is how long before the city runs out of supplies… 8 plus million completely resupplied every 4 days. disrupt that… and you will have em killilng and eating each other in a few weeks.

    welcome to the new order…

    the new progressive electronic feudalism

  24. Scottie Says:

    Personally, I think it’s quite fortuitous that we had blacks on the US Supreme Court so that the court had sufficient negative personal insight from dealing with racism so it could strike down segregation laws during the 1950′s and 1960′s -

    Oh, wait, Thurgood Marshall wasn’t placed on the US Supreme Court until 1967.

    Oops.

    Sorry about that…I guess it was those old white guys who took that route.

    Anyway, at least we had some sensible women on the US Supreme Court to strike down restrictions on a woman’s right to an abortion in the early 1970′s…..

    Ah, oops again….

    That was a bunch of old white guys and one black guy.

    How in the hell could they have arrived at such an opinion without a female Justice on the court?????

    Speaking of women, at least there were sufficient women in Congress to force through women’s suffrage in the early 20th century. I mean, I realise it’s Congress and not the US Supreme Court, but the same standard applies, am I right or am I right?

    Dang! It was those old white guys again!

    Perhaps this whole list of check off boxes approach isn’t necessary after all.

    Perhaps, just perhaps, white guys are not the eeeeevilllllll creatures we’ve been made out to be?

    Perhaps, just perhaps, white guys can be fair and honest and dispassionate and empathetic…..

    Nahhhhh! Doesn’t fit the stereotype!

    Perhaps, just perhaps, we should select Justices for the highest court in the land based upon their abilities?

    Nahhhhhhhh………..that would never serve the greater good!

  25. Wolla Dalbo Says:

    So what we get is a mediocre, leftist, bad-tempered, racist, sexist, identity politics hack sitting on the bench for the next several decades. Whoopie for the Leftist team.

    This hack is going to spew out more misery for the country than you could possibly imagine, or perhaps you can. Obama’s selection process is a vivid illustration of the saying “it takes one to know one”

  26. Gray Says:

    After assuming control of government, he began extensive reforms of Roman society and government. He heavily centralised the bureaucracy of the Republic and was eventually proclaimed “dictator in perpetuity

    There you go. You barely have to think up a post.

    And just as every sitting emperor of Rome was crowned “Caesar” after that, every American President will be “The Bama”.

  27. nyomythus Says:

    And just as every sitting emperor of Rome was crowned “Caesar” after that, every American President will be “The Bama”.

    Unless that future president is a she — then it might be, “The Mamma”

  28. Legal-Right Says:

    So is Judge Sotomayor wrong for believing that the law is something that develops? NO. That would be an outrageous claim if you think about it.

    Our system is built on the basis of common law causing the Rule of Law to be soft and malleable. It shifts and changes and “develops” with each decision made by a court, whether it be a district or appellate court, state or federal.

    It is an activist judge, that goes beyond developing the law to changing the law to fit their personal depiction of the way the law should be, ignoring the pretense of established law, the will of the people, that is the problem and endangers the Rule of Law.

    While the Rule of Law changes with the progression of time, they must change as a reaction to the change of the people. It is improper to force a change in the Rule of Law in order to force a change in the people.

    So the real question remains: Is Judge Sotomayor an activist judge?

  29. Thomass Says:

    nyomythus Says:

    “I see identity politics as anti-liberal, but I know what you mean. Any notion of empathy in determining a judgment of law is very troubling.”

    I wouldn’t say ‘any’ is but I know that empathy is just code. Just like living constitution is code… Both for ‘I’m going to rule based on whatever I want’.

  30. Assistant Village Idiot Says:

    Thomass- “whatever I want” might be more accurately rendered “whatever we want.” There is a clubbish, social atmosphere to liberalism that needs constant reinforcing to survive. Practitioners thus feel comforted that they are not imposing personal values but “good” values.

    Otherwise, you and I are in agreement.

  31. Perfected democrat Says:

    “So the real question remains: Is Judge Sotomayor an activist judge?”

    It’s implicit to her well established left political orientation, her so-called politics of empathy…

  32. jackscrow Says:

    SCOTUS Pick: Obama goes for Demographic over Scholarship….

    Noted lefty constitutional scholar Jonathan Turley thinks Sotomayor tends toward the lightweight edge of the scale of the available talent:

    “She is not the intellectual powerhouse that many academics had hoped for.”

    and,

    “Advocates have struggled to cite a single opinion that could be viewed as a brilliant or extraordinary treatment of the law.”

    And,

    “Looking objectively at the body of opinions by Judge Sotomayor, one is not overwhelmed by their depth. There is nothing in this body of work that would scream out for the elevation of the author to the Court.”

    Read the whole article here:

    http://jonathanturley.org/2009/05/26/white-house-to-announce-court-pick-at-10-am/#more-11301

    I probably wouldn’t agree with Turley on anything. Especially individual rights, making law from the bench and US subjugation to International Law. But he seems to be quoted an awful lot by MSNBC, which is the Faux “News” opposite number in the war for the lemming mind — and by NPR. So….

    On the other hand, what the 0-Man has got going for him is the Harriet Miers nomination. That and Clarence Thomas.

    But apart from Thomas, the rest of the SCOTUS, when nominated, seems to have been much more qualified than Sotomayor.

    Consensus of those who worked with Sotomayor is that she’s intelligent, but an intellectual lightweight and not patient enough to take the time to understand complex issues.

    One wonders whether there will be a shock to the court’s system, giving up a quiet, very polite Justice who is known for listening, for one who often comes across as rude, pushy and domineering of discussion from the bench.

  33. Baklava Says:

    Empathy

    I empathize with a woman who goes out and kills a rapist who raped her.

    Obama wants a jurist with empathy.

    What does he value more? The rule of law? Or the rule of empathy…..

    Signed,
    Baklava

  34. Thomass Says:

    Assistant Village Idiot Says:

    “that needs constant reinforcing to survive. Practitioners thus feel comforted that they are not imposing personal values but “good” values.”

    True. I read accounts of conservative counter protesters where they claimed the lefties tried to taunt them by chanting ‘you are alone’ at them in unison. How very Borg. :)

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