Sotomayor

by Kieran Healy on May 26, 2009

I’ve only seen the headlines, but I expect all the clowns put on their clown suits this morning and are presently climbing out of their clown car at the studio. I’m thinking liberal, activist, Puerto Rico isn’t even a state and the Bronx isn’t either, law-into-her-own-hands, affirmative action, closeted lesbian, the guy in front of me at Dunkin D’s said she wasn’t too bright. On that last point, it’s well known amongst alums that whereas the Princeton Sam Alito graduated from in 1972 was a bastion of civilized learning, the Princeton Sotomayor graduated summa cum laude from four or five years later was a hippie “learning cooperative” where minorities got a coupon book of “A” grades upon admission to use up as needed, were all given the Pyne Prize automatically, and the concept of truth was rigorously suppressed by the leftist faculty.

{ 105 comments }

1

qb 05.26.09 at 2:48 pm

Not to mention “bleeding heart, immigrant-friendly baby-killer.”

2

Mitchell Rowe 05.26.09 at 3:03 pm

Called it in one Kieran.

3

Drew Robertson 05.26.09 at 3:10 pm

I got out of PU in ’72. I think you have it flipped. It seemed that almost immediately after we graduated, later Princeton classes became even more careerist, conformist and one-dimensional. But ain’t that always the way? Kids these days…what a bunch of dullards.

I wonder how many times Alito and Sotmayor will vote as a block?

4

Steve LaBonne 05.26.09 at 3:13 pm

This is why I’m impressed with the pick. Obama seems to finally be learning- I hope- that the right pulls this kind of shit no matter what he does, and he may as well be hanged for a sheep as for a lamb. While Sotomayor may not quite be the liberal counterpoint to Scalito that many of us would like, she is (by almost all reports except those of Rosen’s anonymous buddies) brilliant, and also hard-nosed- not at all the wishy-washy variety of moderate which is what I had feared.

5

Steve LaBonne 05.26.09 at 3:18 pm

P.S. This is good. What, you mean those [insert ethnic slur here] DON’T all have the same first name?

If nothing else, the upcoming circus should be good for insuring that the Grand Old Racist Party never again gets more than about 10% of the Hispanic vote in my lifetime.

6

mds 05.26.09 at 3:39 pm

Mr. LaBonne, don’t be too hard on Mr. Huckabee’s staff. They had to hurriedly type a name into the already-prepared denunciation, and someone slipped up. Note that that mistake was corrected. “Sotomayor comes from the far left,” however, remains.

7

christian h. 05.26.09 at 4:04 pm

Hush, Kieran. We are still suppressing the truth, wouldn’t want it to leak out.

8

ballard 05.26.09 at 4:10 pm

The Bronx isn’t a state and Puerto Rico isn’t either, you are right. She is an American with hispanic parents. Unfortunately, with that said we still don’t know anything about her politics. I’m waiting to learn more about how she will vote. For her sake and Obama’s I hope there are no major stuff in her closet.

9

Thomas 05.26.09 at 4:21 pm

Her inspirational personal story reminds me of Justice Thomas’s. And of course both she and Justice Thomas went to Yale Law, and so both have the sort of academic credentials that would prevent anyone from suggesting they lack the intellectual wherewithal for the job.

10

Steve LaBonne 05.26.09 at 4:53 pm

Feel free to make such a suggestion, Thomas, if and when you actually have something solid to base it on. And no, Jeffrey Rosen’s imaginary friends don’t count.

11

dnha14 05.26.09 at 4:58 pm

Wonderful inspirational story. However her decisions have been slam dunked in her face by the SCOTUS a good number of times and usually by more that the close 5-4 party line decision. 6-3, 7-2, even unanimous. I can’t say whether she’s smart or not, but it seems obvious that her judgment should be questioned.

12

bob 05.26.09 at 5:26 pm

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13

michael 05.26.09 at 5:43 pm

What’s with no vowels in the comments, bob? Is that supposed to be clever?

14

mollymooly 05.26.09 at 6:01 pm

Someone should tell Mr. Huckabee’s staff that Sotomayor can high jump over eight feet.

15

dr ngo 05.26.09 at 6:23 pm

Someone should tell Mr. Huckabee’s staff that Sotomayor can high jump over eight feet.

Even if true, that leaves four other (bipedal) justices for her to trip over.

(Oh, you meant Javier? Hmm . . . recreational drugs, I fear, would stand in the way of his confirmation, almost as much as his Cuban-ness.)

16

Steve LaBonne 05.26.09 at 6:41 pm

However her decisions have been slam dunked in her face by the SCOTUS a good number of times

Which is a badge of honor and a high recommendation in my book, given the right-wing nature (even Breyer is a typical good little corporate liberal) and often bizarre decisions of the current Court. What we NEED, and what I’m gratified and a bit surprised that Obama wants to give us, is someone who can begin moving the Court back in the other direction.

17

Bloix 05.26.09 at 6:57 pm

dnha14 is parroting an entirely false party line. Sotomayor has written 150 civil opinions in civil cases; of these, two have been reversed and one is likely to be. In all but one, her view was accepted by the moderate-to-liberal wing of the Supreme Court, which means that her views were within the mainstream and not more liberal than those of the current members of the high court. Remember also that appellate judges sit in panels of three judges, and do not issue opinions individually; any opinion she wrote was joined in by at least one other judge.

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

It’s true that in Merrill Lynch v. Dabit, a unanimous Supreme Court overturned an opinion by Judge Sotomayor on a highly technical issue of statutory interpretation. It’s worth noting that the decision was unanimous the other way at the appellate court level (ie all three circuit judges voted with Sotomayor – the other two were both Republican appointees, one (Oakes), a Nixon appointee, had been Chief Judge of the Circuit, and the other (Wesley), was appointed by George W. Bush).

As for criminal cases, no one has done a case-by-case review yet, but her reputation is that she is moderate-to-conservative on criminal law issues, favoring the government’s authority over the rights of defendants – not surprising, given her experience as a former prosecutor.
http://prawfsblawg.blogs.com/prawfsblawg/2009/05/lawyers-evaluations-of-judge-sonia-sotomayor.html

18

kid bitzer 05.26.09 at 7:14 pm

“her decisions have been slam dunked in her face by the SCOTUS a good number of times”

“Sotomayor has written 150 civil opinions in civil cases; of these, two have been reversed”

two is a good number. indeed, it may be the best number of all.

( one does not count).

19

Martin Bento 05.26.09 at 7:18 pm

Well, Jonathan Turley also says she’s a lightweight. I saw some of a moot court thing on cspan: Sotomayor, Chief Justice Roberts, and another circuit judge. Of the three, her questions seem the least to get to the core of the matter, though, to be fair, I only caught the end.

I want to know more about Sotomayor’s views on matters like due process, executive power, and government secrecy. I’ve just seen Obama embrace indefinite detention without trial, which, as far as I’m concerned, disqualifies the US as a democracy, and I am very disinclined to trust his judgment any more. We really should have heard much more about the substance of what he taught as a Constitutional Law Professor during the campaign. I see Sotomayor’s substantive positions as more important than her brains (within reason, and it seems clear she is not an idiot). Scalia is quite intelligent; Thomas, by Supe standards, a dolt. Yet Scalia is as bad as Thomas, maybe worse because he makes his positions seem more credible.

20

Steve LaBonne 05.26.09 at 7:19 pm

Thanks Bloix. I should have looked into it more instead of taking the winger talking point at face value.

21

Thomas 05.26.09 at 7:27 pm

Steve, I’m afraid I don’t have anything to add to the commentary on Justice Thomas, if you’re hoping for more on that topic–it’s been done to death. Sotomayor’s turn is just beginning, and I trust she will be treated with the same respect that was given to her fellow Yale Law alum.

22

Steve LaBonne 05.26.09 at 7:29 pm

Steve, I’m afraid I don’t have anything to add to the commentary on Justice Thomas

Don’t worry, that was perfectly obvious.

23

mds 05.26.09 at 7:30 pm

Bloix, didn’t you get the memo?

(1) Never mind all that existing analysis of Judge Sotomayor’s many cases; we just don’t know anything about her. Except for her far-left activism.

(2) Both she and Justice Thomas graduated from Yale Law, and therefore must have comparable legal acumen. Hence, liberals now “have it coming” as payback for their treatment of someone with a similar diploma. (Especially if Judge Sotomayor engaged in sexual harassment, and a Senate full of good ol’ girls helps her wave it away.) If you attack a judge for “strict constructionism,” then it’s fair game for the other side to decry a nominee’s activism.

(3) True judges do not weigh and interpret ambiguities in the law, relying on touchy-feely empathy; their job is to merely read aloud the output of the Judge-O-Tron once it has arrived at the objectively correct result based on fact. Which is why what little we know of her judicial history smacks of activism.

(4) Judge Sotomayor and her appellate court colleagues declined to overturn Title VII of the Civil Rights Act because Frank Ricci has an inspirational biography. Which I think only underscores her activism.

24

Thomas 05.26.09 at 7:32 pm

Is Martin one of the clowns? Is the Yale Law that graduated Thomas-the-dolt the same Yale Law that graduated the distinguished Sotomayor? Are these credentials meaningful or not? (Maybe it’s the Princeton undergrad degree that does all the work. Too bad for Thomas.)

25

mds 05.26.09 at 7:34 pm

and I trust she will be treated with the same respect that was given to her fellow Yale Law alum.

Since this translates to “awarded a lifetime appointment on the nation’s highest court,” I would agree with this sentiment.

26

Thomas 05.26.09 at 7:42 pm

mds, I’m afraid you need to talk to Kieran–he was the one wielding Sotomayor’s education as a shield. And, not surprisingly, the question in the Ricci case wasn’t whether the court should overrule Title VII, but whether a local government could use a fear of an unfounded Title VII case as justification for violating constitutional rights. Sotomayor though that the question, novel though it was, didn’t even deserve discussion, the answer being so obvious. (The answer, in her view, was that of course constitutional rights would give way.)

27

Martin Bento 05.26.09 at 8:24 pm

Thomas, as I said Justice Thomas is a dolt by Supreme Court standards. It is quite possible for such a person to graduate Yale Law, unless you want to argue that all Yale Law School graduates are automatically intellectually qualified for the court. By the same token, the fact that one Yale graduate may be unqualified does not mean all are; some Yalies are smarter than others. One has to judge intelligence on an individual basis, not simply by a diploma, Wizard of Oz traditions notwithstanding. So, in terms of the decision before us, the Yale Law credential is of very little meaning. It does not convey enough information.

28

mds 05.26.09 at 8:25 pm

Wow, what a mendacious reading of the appellate finding. Care to quote the relevant part of the decision that determined that the city’s Title VII concerns were “unfounded”? I’m sure it’s right above the part where Sotomayor argued that “of course constitutional rights would give way,” but I’d also like the page citation for that, too. I’d hate to think you’re just cutting and pasting conservative talking points with no reference to the source material.

And yes, it was Mr. Healy who noted Judge Sotomayor’s exceptional academic performance at Princeton, which makes her identical to every single other person ever to graduate from the same university. Truly, yours is a dizzying intellect. Oh, wait, I can’t base that conclusion on your arguments, only on what school you attended. Sorry.

29

Thomas 05.26.09 at 8:57 pm

Martin, I take it you believe the fact that Sotomayor graduated summa from Princeton is irrevelevant? The Pyne Prize too? Take it up with Kieran, not with me.

I happily concede that not all Yale Law grads are qualified for the court. Precious few, if you ask me. And I say that having read some of Sotomayor’s opinions.

mds, you’re kidding, right? Your description of the case (“declined to overturn Title VII of the Civil Rights Act”) is inaccurate in every respect, and yet you complain about mine. You do know that Sotomayor and her panel didn’t actually write an opinion, right? They simply issued a per curiam order, on a case for which the law is so uncertain that the Supreme Court needs to decide the case. I’d hate to think that you’re talking about a case that you haven’t read, but that’s the charitable conclusion here.

30

michael e sullivan 05.26.09 at 9:13 pm

“And, not surprisingly, the question in the Ricci case wasn’t whether the court should overrule Title VII, but whether a local government could use a fear of an unfounded Title VII case as justification for violating constitutional rights.”

Well, it’s certainly a wonder that anybody needed to consult a court at all, if it was so obviously clear that said fear was unfounded, and that the result violated constitutional rights.

And here I thought those were the very questions, the Second Circuit court was asked to decide (and apparently disagreed with your assessment).

I never realized (and apparently neither did the Second Circuit) that we had a constitutional right to be promoted based on aptitude tests.

31

Andri 05.26.09 at 9:18 pm

Arrogance, intelligence, and exquisite parsing of sentences. Such qualifications once were all it took for court nominees. Alas, you knew them. The era of hope, the age of understanding, the epoch of wisdom now replaces them. Good luck Justice Sotomayor.

32

Thomas 05.26.09 at 9:30 pm

michael, the 2nd circuit didn’t provide reasons for their decision, an unusual departure from the customary practice, so we don’t know why they disagreed with my assessment. The conventional wisdom is that the Supreme Court won’t disagree with me, if that makes you feel any better. (No, there’s no constitutional right to be promoted based on aptitude tests, but there is a constitutional right not to have an aptitude-test-based-promotion scheme thrown out on the basis of race.)

33

Bloix 05.26.09 at 9:47 pm

TPM points out that the GOP meme on reversals is that of six cases she wrote that were taken for review by the S Ct, three were reversed. What this fails to take into account is that the S Ct won’t take a case for review unless four justices vote to take it – that usually means either (i) five or more justices think it’s wrongly decided, or (ii) four justices think it’s wrong and they think they can persuade a fifth justice to rule with them. (Justices do vote strategically – they won’t vote to take a case if they disagree with it but don’t think they have the votes to overrule it.)

Just about the only time they’ll take a case with the intention of affirming it is that when there is a “circuit split” – different federal circuit courts have ruled differently – the S Ct may decide to review it in order to create a uniform national rule. A review of a circuit split is about equally likely to affirm as to reverse the lower court decision. (In these cases, they are in effect taking the case they agree with in order to overrule a different case that they disagree with.)

Not surprisingly, therefore, the Supreme Court reverses the great majority of the cases it chooses to hear. Over the past few years, the percentage has been a pretty steady 75%.
http://www.concurringopinions.com/archives/2007/07/some_thoughts_o.html

So Sotomayor’s performance is well above average. This may say nothing about her abilities, but it certainly doesn’t show her to be a bad judge.

34

ghost of elvis 05.26.09 at 9:54 pm

Those of us who live west of the Mississipi are pretty sick and tired of the assumption in Washington that all intellectual power comes from the Ivy League and that no one who has not served on the appellate bench belongs on the Supreme Court. How about a law professor from Creighton or Baylor for a change? There are lots of smart guys who are highly regarded in their area of expertise who don’t teach at Harvard or Yale, and they like most lawyers hold a keen interest in the Court and how its decisions affect the nation. I’ll bet I can find at least 10 such professors in good law schools who would outperform this nominee by a country mile. How about a lawyer whose entire career has not been as a government employee or a corporate lacky? Why not a great trial lawyer who has represented real individual Americans in opposition to the almighty government and corporate giants? What about someone from a state bench, trial or appellate? What about someone who has served as a public defender? No one on the court today has ever represented the common man as a staple of his or her practice. I know nothing of Judge Sotomayor except what I have read. If she is in fact a judicial bully she should not be confirmed no matter what her intellectual prowess or resume’. I have practiced 40 years in state and federal courts and I can tell you from experience that Judges who bully share all or some combination of the following: (1) they are deeply insecure in their intellect and ability; (2) they make up their minds on the merits of a case and then try to remake the facts to fit their preconception of the proper result, and bully lawyers and witnesses to shape that result; (3) they want to impress juries, spectators, their colleagues and their clerks and in so doing endeavor to make lawyers and witnesses feel small; (4) their questions are hostile and asked for effect, rather than probing and designed to go to the heart of the case; (5) as appellate judges their pretentions are easily seen through and they are unlikely to be able to build a consensus on close issues. I hope Judge Sotomayor is none of the above, but as long as both parties try to fill the court with ideologues of their own brand rather than with persons who look to justice within the framework of law, we will continue to get only appointees from the federal appellate bench who are the right color, ethnic persuasion and capable of getting enough votes to defeat a filibuster. I had rather take a chance on a real outsider.

35

Bloix 05.26.09 at 9:54 pm

Thomas, you’re wrong about that. The second circuit panel in Ricci adopted the district court’s opinion as its own. That made the district court opinion the equivalent of an appellate decision. It was published in the appellate law reporter and has the full force of any other appellate decision. To know what the appellate court thought, you can read the district court opinion.

And the judges on the Second Circuit, in declining to review the case en banc, clearly felt that the result was compelled by prior Second Circuit precedent. Appellate judges are bound by prior decisions of their own court. The Supreme Court is not so bound, and can overrule those prior decisions. So the fact that a panel felt that the decision is easy – in that was compelled by prior precedent – tells us nothing about whether the case is difficult when those prior decisions are up for reconsideration – that’s the question that makes the case worthy of Supreme Court review.

36

Martin Bento 05.26.09 at 10:38 pm

Thomas wrote:

“Martin, I take it you believe the fact that Sotomayor graduated summa from Princeton is irrevelevant? The Pyne Prize too? Take it up with Kieran, not with me.”

Why would you take that? Nothing I wrote implies that. I said that Thomas is, by Supe standards, a dolt, and you responded that he is, like Soto, a Yale Law graduate, so it is not fair to call one a dolt and not the other (if that doesn’t follow, what was the point of your argument?). So I replied that not all such are created equal, which you now concede. So you have conceded my point and are trying to get me in a fight with Kiernan as a distraction.

37

Cala 05.26.09 at 11:38 pm

However her decisions have been slam dunked in her face by the SCOTUS a good number of times and usually by more that the close 5-4 party line decision. 6-3, 7-2, even unanimous. I can’t say whether she’s smart or not, but it seems obvious that her judgment should be questioned.

I know this is the newest talking point, but it only makes sense because people don’t understand how the court works. The SCOTUS agrees to hear cases where there has been significant disagreement, usually with two different courts disagreeing about the interpretation of the law. It’s not about giving a gold star to the smartest judge or winning a competition for the best interpretation.

38

Walt 05.26.09 at 11:57 pm

“Kiernan”? Martin, I think you’re going to get that fight with Kieran…

39

George W 05.27.09 at 1:17 am

Way too much meta-snark. Can’t understand who’s for or against what.

40

josh 05.27.09 at 1:49 am

While I disagree with him on most matters, I don’t think it’s quite just to call Thomas “a dolt” — unless the “by Supe standards” does a *lot* of work. (The quality of his opinions varies quite a lot, but he doesn’t seem to me any less astute, as a judge, than Kennedy is or O’Connor was, on average).
As for Sotomayor, I think there’s no real question about her intelligence (this of course doesn’t mean questions won’t be raised. Note the emergent meme comparing Sotomayor to Harriet Miers. Because, you know, they’re both gurlz.) The question is whether she can articulate a strong constitutional or judicial vision around which a powerful liberal coalition on the Court can coalesce (or, join Breyer, the other liberal Justice likely to be around for a while, in doing so). I have my doubts about that. Hers seems to be a more narrowly focused sort of judicial intellect — good at dealing with the cases and technical issues at hand. Which is good. In particular, her experience on the 2nd Circuit (and before) should give her a lot of experience with issues that will be quite important in coming years, as government regulation of the financial industry becomes a major focus of policy and of litigation. So I think she’s a good pick not just because of her “inspirational” story, or the political advantages of being a Latina who was initially appointed to the bench by a Republican; it’s also that she’s not only competent — her particular competence is well-suited to the demands of the near-future.
But I do wish we knew more about her views on questions of executive power and civil liberties, and that she had a less centrist/conservative bent on “law and order” issues, and that she showed signs of being able to articulate a philosophical position to counter Scalia’s. But hopefully we’ll get at least some of this in Obama’s next appointment. She seems likely to be less effective as a liberal voice on the Court than Karlan or Wood or Sullivan would be; but she’s probably politically safer at this point.
And this does seem to fit Obama’s general approach — careful, politically astute, prizing competence, not ideologically passionate or ambitious (and tending to use inspirational personal narrative as a substitute for ideological vision). It has its advantages, but as we know, will tend to disappoint Obama’s liberal supporters.

41

Thomas 05.27.09 at 3:47 am

Martin, I think that by ordinary standards Sotomayor is smart, but that, as a nominee for the highest court, she isn’t particularly distinguished. Kieran suggested in his post that that opinion makes me a clown, in part Sotomayor has an excellent academic record of achievement. Her academic record is in large part indistinguishable from the academic record of Justice Thomas, and that has never kept people in good standing here–you, for example–from calling him a “dolt”, and I’m wondering what it is that make them different. It isn’t academic credentials. I’ve read some of the opinions each has authored and I can tell you that, in my view, Sotomayor doesn’t come off well in the comparison. So what is it about my views that makes me a clown?

bloix, Sotomayor’s panel on the 2nd circuit adopted the district court’s opinion as its own after dissents from the denial of en banc review criticizing the fact that the panel had issued a per curiam opinion were circulated. That kind of post-hoc rationalization is neither comforting nor persuasive. Note that until the panel responded to the dissent’s criticism, the district court’s opinion on point was both the law of the circuit and unpublished. How that accords with the rule of law I don’t see.

42

jake 05.27.09 at 3:47 am

Here, as elsewhere, people write a lot of nonsense. Don’t you just love the internet?

43

Bloix 05.27.09 at 4:28 am

Thomas, the point is that the panel thought that the issue was an easy one, because it was compelled by prior law. All three judges thought so. And the judges who voted against the rehearing tbhought so (note their reference to “controlling authority in our circuit.”) Those judges thought that their hands were tied by prior rulings, so there was nothing for them to decide. The Supreme Court is different – it can overrule Second Circuit decisions and even its own prior decisions, so from its point of view the case permits some discretion.

And when you understand prior “disparate impact” discrimination law, you’ll understand why the case was an easy one. Under controlling law, if a city gives a written test for promotions and only white people pass the test, it can be sued by the black applicants for race discrimination. And if the city cannot prove that the test evaluates skills that are genuinely necessary for the job, it will lose the lawsuit.

Here, New Haven had given a test that had a “disparate impact” – only white people passed. And it knew that it could not prove that the test evaluations real job skills – not that it provides an indication of who is likely to do well, but really tests necessary job skills. So it knew that if it promoted the white candidates who had passed, it would be sued AND IT WOULD LOSE.

The white plaintiffs in the Ricci case were arguing, in effect, that the city of New Haven had a legal obligation to do something that would be found to be race discrimination. That was an easy argument to reject.

The Supreme Court took the case because, I believe, it intends to change the law on disparate impact. That’s not something that the Second Circuit could have done. So for them, the case was easy. I don’t see how this is a black mark on Sotomayor’s record.

44

Kieran Healy 05.27.09 at 5:10 am

I think that by ordinary standards Sotomayor is smart, but that, as a nominee for the highest court, she isn’t particularly distinguished. Kieran suggested in his post that that opinion makes me a clown

Do you have a gig as a talking head on TV now, Thomas?

45

Kieran Healy 05.27.09 at 5:15 am

Bloix, your discussion is dangerously fact-based, which makes it likely that Thomas will soon tell you that he is a Lawyer and has already addressed, in certain unspecified places, all of the objections to his views that you are in any event neither in any position to make nor in possession of the required training or capacity to grasp.

46

Shawn Crowley 05.27.09 at 5:20 am

Bloix: thanks for the close reading of the New Haven case. If only the mass media could do as well, not only missing the procedural posture of the case but neglecting to mention that Sotomayor was one of three judges.

I wish, however, that I had a better idea of Sotomayor on the expanse of executive power. American politics has produced another odd inversion; “conservatives” fighting for an imperial presidency while at least some liberals hoping for restraint of the same.

Any information on how she stands on criminal law? SCOTUS just overruled Michigan v. Jackson. The chipping away of the rights of the accused continues and many “liberal” judges can’t be distinguished from conservatives when it comes to crime.

47

Brett 05.27.09 at 6:26 am

I am still hoping that her opponents go with the she hates nunchucks angle. Guaranteed winner.

http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243356423

48

Henri Vieuxtemps 05.27.09 at 7:51 am

I am underwhelmed by this nomination. From what I’ve read she seems like a non-ideological, common-sense/split-the-difference sort of individual, which means that she will probably end up being one of those “swing justice” types. Obama-style. Who needs that.

49

Matt 05.27.09 at 7:55 am

“Disparate impact” might as well be affirmative action. How can anyone prove what skills are deemed necessary for a job? Do people really still believe in affirmative action? I thought it was an issue even liberals had given up.

50

Steve LaBonne 05.27.09 at 12:16 pm

I am underwhelmed by this nomination. From what I’ve read she seems like a non-ideological, common-sense/split-the-difference sort of individual, which means that she will probably end up being one of those “swing justice” types. Obama-style. Who needs that.

While I certainly agree in principle, in practice Obama was very unlikely to do better and could well have done significantly worse. So I’ll take what I can get.

51

Barry 05.27.09 at 12:30 pm

Shawn: “I wish, however, that I had a better idea of Sotomayor on the expanse of executive power. American politics has produced another odd inversion; “conservatives” fighting for an imperial presidency while at least some liberals hoping for restraint of the same.”

So many oddities in current USA politics are cleared up by remembering that ‘conservative’ now simply means ‘right-winger’. That is, when it doesn’t mean ‘radical right-winger’.

52

Allan 05.27.09 at 12:47 pm

What I love is how the Right was ready to attack with the exact same accusations whoever the nominee ended up being. I guess the only “responsible” choice Obama could have made was to pick no one. Such is the opinion in today in the satirical National Inquisition.
http://www.natinq.com

53

Keratos 05.27.09 at 1:47 pm

Sotomayor is bad news.

We need a colorblind society where of us all are treated equally and fairly. She is a racist and a sexist and a partisan politician.

(see her comments about white males having judgement inferior to hers – apparently solely because they are white and male = racist)

She believes in legislating from the bench. ( also plainly stated by her in public)
I am sick of POLITICAL judges. We have too many now. We need a lot less of this, not one more.

I am pro gay marriage, pro abortion, pro environment, although anti illegal immigrant – so this is not a knee jerk reponse to her politics, rather a considered response to her statements. She is unsuitable – like most of the rest of the court. We need change, but we aren’t getting it. We need America first not the democratic party first.

When you have partisan politicians nominating our justices we get partisans not justice. I was hoping for better from this administration. I don’t see the change……..

54

Thomas 05.27.09 at 1:47 pm

Bloix, as I said before, we don’t know what the panel thought, because we don’t have a contemporaneous account. The 6 judges who dissented from rehearing didn’t take a position on the merits, but simply noted that the case was a case of first impression in the 2nd circuit. (And I think it’s worth pointing out that the dissenting opinion was authored by a Clinton appointee–it wasn’t a conservative reaching a conservative result.)

The short hand description you offer of the law is just that. Your reading of Title VII simply reads out the disparate treatment provision in favor of the disparate impact provision. It seems an odd way to harmonize the two–simply ignore one. And you ignore the constitutional question raised by the fact that we’re dealing with a public employer. Title VII doesn’t determine the constitutional protections available–it may be that Congress has set up a scheme in which a public employer is legally liable for following the constitution; there’s no loophole in the 14th amendment for Title VII compliance. The question of disparate impact liability isn’t as simple as you suggest, and the petitioners in this case argue that the city had a valid defense to any disparate impact claim but refused to pursue it.

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Thomas 05.27.09 at 3:46 pm

Kieran, I apologize for overreading: If I shared my opinion on TV, I’d be a clown, but sharing it here is apparently fine. It’s the TV-part that does the work. Thanks for clarifying.

Bloix and I are doing fine, thanks, and the fact that you are ignorant of the law will do nothing to change that. Your pride in your ignorance and lack of capacity will continue unabated I’m sure.

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bitchphd 05.27.09 at 3:55 pm

Re. “Jonathan Turley also says she’s a lightweight”–it’s clear already that the two lines of criticism are going to be:

1. She’s a racist! Completely unqalified and only got where she is b/c she’s a Puerto Rican woman from the projects which is so very unfair to white men! (The not-so-respectable argument)

2. She’s not manifestly unqualified, but she’s not really very outstanding, either (see Yoo and Turley, among others). The “respectable” version of the argument above, stated more condescendingly.

(If she weren’t a PR woman from the projects, (2) could easily be restated as “she’s not a hard-line ideologue, and will therefore be a pretty easy confirmation process for a center-life judge, good for Obama.)

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Martin Bento 05.27.09 at 4:40 pm

Thomas, according to his wikipedia entry, Clarence Thomas graduated near the middle of his class at Yale. That’s not equivalent to Sotomayor, though you might notice I was not defending the intellectual capacities of Sotomayor. For me, the jury is still out on that. I don’t know what it means to be a “member in good standing” of Crooked Timber: I don’t post here, and no one ever issued me a card or anything. I’ve never been banned or disemvoweled, but I dare say you could call any prominent political figure a dolt in this venue – Obama, whomever you like – and also not meet such a fate. Kieran defined the clowns as those who argue “I’m thinking liberal, activist, Puerto Rico isn’t even a state and the Bronx isn’t either, law-into-her-own-hands, affirmative action, closeted lesbian, the guy in front of me at Dunkin D’s said she wasn’t too bright.” – none of which sounds to me like what you are saying, though if you recognize yourself in that description, let your floppy feet fly.

Bitchphd, look, I’m a Puerto Rican from the projects in the Bronx myself. Pretending that any criticism of Sotomayor is racist is precisely the sort of intellectually dishonest and defamatory argument the right accuses the left of making, usually unfairly. Turley is worth citing as a source since he is not a Republican hack, and has been an important voice in the struggle to put the genie of dictatorial executive power back in the bottle, which Obama has decidedly not been. Sotomayor’s position on this is unclear, and that is my main concern. The fact that she wanted to be a cop, but settled for prosecutor because of her diabetes is not a good sign. Nothing wrong with cops per se, but the law enforcement/prosecutorial mindset is seriously overemphasized in our system as it is.

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Bloix 05.27.09 at 4:49 pm

Thomas, I don’t want to go on arguing the details of Ricci with you. Maybe the decision is wrong, but I don’t think that’s the point on a non-law blog like this. The point is that one federal district judge heard the evidence and ruled for New Haven; three federal circuit judges affirmed; four more federal circuit judges looked it over and thought the decision was fine. I have seen no contention that the panel that Sotomayor sat on had any motive, political, personal, or otherwise, to shirk their duty to review the case in light of existing precedent.

There is no “Sotomayor ruling” or “Sotomayor opinion” in Ricci; she was one of a group of three judges that reached a result, and that result was acceptable to a majority of the judges on the Second Circuit. The notion that on her own she did something bizarre, outrageous, or outside the mainstream is a fantasy. She agreed to a reasonable result that people like you and me can argue about in good faith for hours – not an off-the-wall result that disqualifies her for a Supreme Court nomination. That’s all I’m trying to say.

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Martin Bento 05.27.09 at 5:06 pm

What I’m getting from the analysis that are coming out of Sotomayor’s decisions is that she is highly intelligent, but not an intellectual. That is, she has an astute and disciplined mind, but is not deeply motivated by the power of big ideas. Perhaps she is primarily motivated by a desire to enforce justice by punishing wrongdoers, which would be useful against wall street, but less so regarding civil liberties. This would actually be consistent with Obama’s stated principle of favoring consequences over principles, with which I disagree: you can know your principles, but consequences will always include the unforeseen. Gitmo is intended to counteract terrorism (or such is claimed). There are strong arguments that it has, on balance, the opposite effect. But the ultimate consequences of Gitmo cannot be known, probably not fully even in hindsight. Not to say that one should follow principles regardless of consequence. But if your principles consistently have or predictably will lead to bad consequences, you need to revisit your principles, not decide principles are unimportant.

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Thomas 05.27.09 at 6:59 pm

Martin, Yale Law doesn’t rank students and hasn’t for a long time–before Thomas’s and Sotomayor’s time there. There’s no evidence to suggest that Sotomayor’s academic record at Yale was better than (or worse than) Thomas’s.

Bloix, my concern isn’t so much that Sotomayor and the rest of the panel got the decision wrong, or that the decision is likely to be reversed. My complaints are that the panel insisted that the decision was controlled by precedent when it wasn’t (or wasn’t in the views of 6 judges on the circuit, and wasn’t controlled by Supreme Court precedent in the view of the Supreme Court), and that the panel took a very unusual–troubling even–path to setting forth its opinion. Judges offer reasons for their decisions, and refusing to take that obligation seriously is a bad sign.

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catch all 05.27.09 at 7:53 pm

Ghost of elvis has made the most relevant comments here. Forget about how smart she may or may not be. The law just is not that difficult. Whom has she represented, and in what matters? What are her personal attributes? Is she so full of herself that she can be fair only to her own point of view? The court needs a few people who haven’t spent their careers beholden to the government and who have been slapped around a bit by the judiciary, not more like-minded government dependants.

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Martin Bento 05.27.09 at 7:56 pm

Thomas, the source for the assertion that Thomas graduated in the middle of the class is a 60 minutes interview with him:

http://www.cbsnews.com/stories/2007/09/27/60minutes/main3305443.shtml

Thomas also reports that, despite a Yale law degree, he could not get a job! Eventually, he got a $10,000 a year job (this is the late 70’s) for John Danforth, which led to the Reagan administration and his further career. He admits that he didn’t like this job, in part because it paid so poorly, and took it from lack of better offers. Why would a Yale Law graduate be unable to do better than this? There are three basic possibilities:

1) Thomas is black, and pervasive racist beliefs in the legal industry led people to systematically underestimate his abilities.
2) Thomas is black, and pervasive beliefs about affirmative action led people to assume his credentials were not honestly won, and therefore to underestimate his true abilities. This is Thomas’ own theory.
3) The legal labor market judged Thomas a dullard by the relevant standards because he was.

Note that if you believe labor markets are efficient in any strong sense, you are committed to position 3. This is not below the noise floor: Starbucks may fail to distinguish well between the best and the merely adequate baristas because the bottom line impact will be slight, but law firms are all about the talent they attract, and big money is at stake.

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Henri Vieuxtemps 05.27.09 at 8:31 pm

Why, I suppose it’s also possible that
4) law firms’ clients tend to avoid the firms that employ black lawyers (because of 1 and/or 2), and in that case market efficiency itself hurts Mr. Thomas’ chances. Too far-fetched?

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Sebastian 05.27.09 at 8:48 pm

“Here, New Haven had given a test that had a “disparate impact” – only white people passed. And it knew that it could not prove that the test evaluations real job skills – not that it provides an indication of who is likely to do well, but really tests necessary job skills. So it knew that if it promoted the white candidates who had passed, it would be sued AND IT WOULD LOSE.”

The bolded part isn’t quite accurate. They knew about the disparate impact concern before they designed the test and specifically had outside help making sure that the test would be fair and tailored to the job specifications. The test was designed with the entire range of racial sensitivities in place.

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TomSwift 05.27.09 at 9:57 pm

“What I love is how the Right was ready to attack with the exact same accusations whoever the nominee ended up being.”

As one of those conservative clowns, I have to take issue here, don’t liberal politicians do almost the same thing for our judges?

With only a couple of exceptions, liberal judges tend to rule in favor of minorities, criminals, and sexual deviants regardless of the merits of the case (I’ll admit they’re not all illegitimate) while ignoring the rights of everyone else. (Such as property rights)
A few examples:

Group of racists who wish to live in a neighborhood inhabited only by white people? Clearly unconstitutional!
Hawaii law saying only people of Hawaiian descent can own property? Not so much.

Texas law banning gay sex? Clearly unconstitutional!
Washington law stating that people must inform their partners that they have HIV? Not so much.

If I were on the supreme court I’d argue sex isn’t an unalienable, constitutionally protected right because
1) Every single state has had some sort of law regulating it for the first 200 years of the republic
2) Sex involves more than one person and therefor disputes will eventually arise between them that must be settled by courts, which can only render decisions based on laws passed by the people.

This is not to say that the state of Texas ‘should’, only that it ‘can’. But if sex is a right then how can the Washington law be legal?

I’m also not saying that the conservatives are perfect. Thomas is too willing to give power to the executive, Scalia sometimes seems to only reach the correct decision when it suits his interests.

But I do believe that the court’s liberal members try to do what they feel is right, instead of what they feel is legal. I’d rather have a whole court of conservatives, what the law *should* say is an issue for the voters.

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Thomas 05.27.09 at 10:13 pm

Martin, yes, I followed the links. That said, the report of Thomas’s ranking is at best a self assessment, because Yale Law does not rank. The grading practices at Yale are, as I understand it, a further obstacle to ranking. And you haven’t offered any information about Sotomayor’s ranking, which you suggested above was better than Thomas’s. (I don’t mean to suggest any doubts about whether Yale Law ranks–they don’t–but just to point out a further difficulty for you.)

In a world of antidiscrimination law, scenario 2 is fully consistent with an otherwise efficient labor market. Since I doubt you believe that labor markets are efficient in the strong sense, I’m not sure the relevance of the anecdote about Thomas, at least from your perspective.

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Martin Bento 05.28.09 at 4:57 am

Thomas, first of all, Yale certainly does rank its students, but only the best ones. It is called “honors”. The top is summa cum laude – and there’s Sotomayor. No Thomas though. One rank below that is magna cum laude – hello, Thomas! No answer. Two ranks down is cum laude. Still no sign of Thomas, though he did pull out a cum laude for his English degree at Holy Cross. So he is at least three ranks below Sotomayor. The Bar was also unimpressed. Most Court nominees get a “well-qualified” rating. Thomas got “qualified”, and that was a split decision, with two judges voting for “unqualified”. Wanna’ bet Soto gets a “well-qualified” rating?

Why should Thomas’ account of his own academic accomplishments be disregarded when that assessment is contrary to evident self-interest? It’s not like you’ve produced any contrary evidence whatsoever.

No, scenario 2 is not consistent with an efficient labor market. Claiming it consistent with an “otherwise” efficient labor market is just handwaving. In other words, the iron laws of the market caused employment decisions to be made very efficiently overriding all of the myriad irrational biases people have, save when that assertion might undermine the prestige of a pr0minent conservative, in which case, there is an “exception” to the normal working of the market.

Henri – hiring law firms is also a form of employment, and to the extent people are discriminating among them from either racism or affirmative action bias, then the labor market is still not operating efficiently. Also, your thesis requires an extraordinary assumption – that law firms do not have an irrational bias against presumed or actual affirmative action recipients, but that the rest of society does. What part of the lawyer gene produces this extraordinary effect?

Really, you guys are trying to kill Okham all over again. We can erase the difference between Soto and Thomas by assuming Yale honors are meaningless, as is the Pyne Prize, we can stipulate that the ABA has some ideological bias (I can anticipate that one), which requires some explanation of why Scalia, for example, did not get similar low marks, we can stipulate that law firms alone in the otherwise efficient labor market discriminate irrationally against affirmative action recipients, or, alternatively, that they alone do not, but the rest of society does severely, so that they have a business case for acting as though they do.

Or we can hold that Thomas is a dullard.

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Thomas 05.28.09 at 5:54 am

Martin, I don’t know how to say this but directly: you’re flat wrong. Yale Law does not rank its students. Sotomayor did not graduate summa from Yale Law. I don’t know where you’ve gotten this bad piece of information, but that’s what it is. Sotomayor did graduate summa from Princeton, so perhaps that’s what led you astray.

It wasn’t the bar that was unimpressed by Thomas, it was the American Bar Association, an interest group whose evaluations are understood to be political.

I’m not saying that Thomas’s self evaluation should be disregarded. I simply pointed out that Yale Law doesn’t rank its students, so Thomas’s self-evaluation was just that–it wasn’t an account of his ranking by the school. You continue to trip over this fact.

I do like that you say you hold the view that labor markets are efficient in a strong sense–that made me smile. Forgive me if I don’t believe you. My point, which you say is mere hand waving, is that affirmative action may raise the risk that a candidate’s credentials are unreliable, but antidiscrimination law prevents an employer from reducing compensation to account for the risk.

But since you are focused on post-law-school employment, tell me, what prestigious employment did Sotomayor take? A clerkship with the Supreme Court? No. A clerkship with a prominent court of appeals judge? No. No clerkship at all, not at the federal or state level. Did she take a job with a prestigious law firm? No. No, she took a job as an assistant district attorney, a position she received with the assistance of one of her law professors. I guess we’re supposed to think that’s more impressive than taking a job as an assistant attorney general, but I’m not sure why we’re supposed to think that.

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Henri Vieuxtemps 05.28.09 at 10:06 am

@64 Henri – hiring law firms is also a form of employment, and to the extent people are discriminating among them from either racism or affirmative action bias, then the labor market is still not operating efficiently. Also, your thesis requires an extraordinary assumption – that law firms do not have an irrational bias against presumed or actual affirmative action recipients, but that the rest of society does. What part of the lawyer gene produces this extraordinary effect?

OK, I don’t really care about Mr. Thomas one way or another; nevertheless: an efficient market, as I understand the concept, is a market that factors in all the pieces of information available. Common (albeit mistaken) perception of someone’s inferiority is a piece of information that affects this person’s worth, is it not? Even if the firms themselves, having the expertise and all, are fully aware of this person’s excellent qualifications. Am I wrong here?

Not a big deal, don’t answer if you don’t feel like it. I do suspect this might be a bit far-fetched.

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widget 05.28.09 at 5:03 pm

No, she took a job as an assistant district attorney, a position she received with the assistance of one of her law professors. I guess we’re supposed to think that’s more impressive than taking a job as an assistant attorney general, but I’m not sure why we’re supposed to think that.

The ADA position was under Bob Morgenthau in Manhattan. It would be a mistake to minimize Morgenthau’s reputation or the quality of candidates he was able to attract. I’m not familiar with the hiring standards of the Missouri AG’s office, so I won’t attempt a comparison.

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frankly0 05.29.09 at 6:16 am

I guess I would like to ask Kieran Healy and others who appear to be completely convinced that Sotomayor is a top tier intellect, even in the rarefied atmosphere of the Supreme Court, a simple question:

Do you think she will, upon joining the Supreme Court, distinguish herself as every bit the equal of Scalia intellectually, and will be the liberal leader and visionary to counterbalance Scalia on the right?

It is a desire for that sort of leader that animates both Rosen and Turley, and which they declare, fairly or not, Sotomayor cannot satisfy.

Now I should think that liberals, who certainly have long claimed to dominate most intellectual disciplines, might have amongst their potential candidates for the Supreme Court some individuals who might fulfill that role. If Sotomayor was chosen purely for her talents and dispositions as a jurist, one would expect that she would be among those individuals.

Again, the question is whether Sotomayor is likely to be such a justice. If she is appointed, I should think it’s going to be pretty obvious over time whether in fact she comes to play that role. In general, after some years, a consensus on whether someone is exerting such an influence seems to be reached by pretty much all observers. Therefore, the prediction that she will or not is likely to be a quite testable statement.

And if Kieran and others are so completely convinced that Sotomayor is of first rank intellectually, it should not be hard for them to state confidently that, absent something unusual, that’s exactly the sort of role they see Sotomayor playing.

So can we get a firm statement from them on this point, so that they can put their credibility where there mouth is?

Happily, the memory of the Intertubes is long. We can revisit this in some future year and see how well their claims matched up with the reality.

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frankly0 05.29.09 at 6:26 am

Just to follow up a bit on my post, I think it is pretty fair to expect people who claim Sotomayor is of first rank intellectually, and has great potential as an intellectual leader and visionary, to make the prediction that she will be the counterweight to Scalia.

Certainly, before Scalia went on the Supreme Court, it was well expected by his supporters that he was going to become a leader and visionary. Likewise, they were touting Bork in much the same way, and I little doubt that Bork would have become such a leader.

Are Sotomayor’s supporters willing to make the same prediction?

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The Navigator 05.29.09 at 6:51 pm

Scalia is not a leader. He’s a coiner of memorable phrases, and he happens to be one right-wing vote on a court where he can usually align with four others, but he’s not a “leader” or a ‘visionary’. He didn’t make Kennedy or Souter into originalists and there’s no sign that he’s done that, or needed to do that, with Roberts or Alito.

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The Navigator 05.29.09 at 6:52 pm

And I have a great deal of doubt that the uber-crank author of Slouching Towards Gomorrah would have become a ‘leader’ on the court. Being an extremist outlier is not the same as being a leader.

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Kieran Healy 05.29.09 at 7:42 pm

I guess I would like to ask Kieran Healy and others who appear to be completely convinced that Sotomayor is a top tier intellect

I have no particular view on Sotomayor’s intellect. What I am completely convinced of is that a white guy with Sotomayor’s background educational credentials would not be subject to any questions about his intelligence, and that her socioeconomic background would be an asset rather than a liability. I mean, look at Alito. Did you hear any questions about his IQ? Here’s part of his opening statement from his confirmation:

“… when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position. And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, “You know, this could be your grandfather, this could be your grandmother. … When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”

The premise of the conversation is bullshit.

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frankly0 05.29.09 at 8:06 pm

Kieran,

You say you have no particular view on Sotomayor’s intellect?

How does that possibly square with the presumption that she was chosen only on the basis of her abilities as a jurist? If you believed that that was the sole reason she was chosen, wouldn’t you be obliged to say that her intellect was of first rank among jurists?

You seem to be conceding the point that she may very well have been chosen for other qualities. But wouldn’t among those very qualities quite possibly be her gender and ethnicity, in order to satisfy purely political demands?

Is the only difference between you and those you criticize at base that they, on the one hand, assume that she was chosen in no small part for other qualities, and you, on the other hand, are uncertain as to the point?

Why is it pernicious and evil to believe something is likely — as do Sotomayor’s critics — and exemplary to believe — as you do — that it is a real possibility, but you just don’t know for sure? It sure seems like rather uncertain arguments are involved here. There has been a history of Supreme Court picks that most people concede were based in no small part on gender and race; to some, this seems like a pretty good argument that such considerations played an important role here; to you, I presume, that presumed history does not suggest that.

But how can you gin up so much outrage over what seems to be only differing positions on a logically very delicate controversy?

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harry b 05.29.09 at 8:08 pm

I like Bork, and would like to have seen him on the court, but the idea that a man who is so incapable of masking his arrogance would have become a great leader on the court is curious. I like Scalia too — but he’s no leader. Great intellects rarely are. I’m really delighted, though, to see so many right-wingers attacking Sotomayor here and elsewhere, because I think there is always a risk that Hispanics will start voting Republican in significant numbers, and its a relief to see that they are so emphatically not wanted. This is a no-win situation for her opponents — only they, it seems, are unaware of their own subtext.

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frankly0 05.29.09 at 8:18 pm

Just to add to my point, an important underlying issue is this:

If, indeed, one assumes for argument that Sotomayor was chosen in no small part for reasons other than her excellence as a jurist, isn’t it reasonable to believe that, most likely, her actual capability as a jurist is well less than those who would be chosen solely on the constraint that they be the best jurist?

Wouldn’t common sense and elementary statistics lead us to believe that? It would certainly not suggest that she was “dumb” or anything like that. Yet certainly a lot of critics — Rosen and Turley among them — aren’t saying that. They are saying instead that she is not among the first rank intellects among available jurists.

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Emma 05.29.09 at 8:35 pm

Shall I just say that a bunch of (mostly, I think I saw one or two comments from women) male acdemics trying to determine the standing of a female judge by measuring her against male judges sound just a tad… condescending? Just like Turley with his thinly veiled contempt for a working judge as opposed to a genius academic. And most of you without even doing due diligence.

And you’re mostly liberals. Sheesh.

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Henri Vieuxtemps 05.29.09 at 8:41 pm

Right, frankly0. She must be the first SCOTUS nomination in history with political considerations playing a role, it was totally different in Alito’s case. He was chosen for his “actual capability as a jurist” alone.

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sleepy 05.29.09 at 8:59 pm

There’s no history of geniuses on the Supreme Court.
Scalia is not, by any measure a “powerful intellect.” Bork!? Arrogance is not intelligence.
And comparing Thomas’ record to Sotomayor the later comes out ahead: full stop.

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magistra 05.29.09 at 9:10 pm

There has been a history of Supreme Court picks that most people concede were based in no small part on gender and race; to some, this seems like a pretty good argument that such considerations played an important role here; to you, I presume, that presumed history does not suggest that.

I believe the statistic is that 107 out of 111 previous Supreme Court judges have been white men – that certainly looks like ‘choices based in no small part on gender and race’. Or don’t white men have race and gender?

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Kieran Healy 05.29.09 at 9:32 pm

How does that possibly square with the presumption that she was chosen only on the basis of her abilities as a jurist?

frankly0, I’m not in much of a mood to be trolled. But I’ll answer anyway. Where did I presume she was chosen only on the basis of her abilities as a jurist? Where is that presumption in Obama’s introduction as he nominated her? The appointment of a Supreme Court Justice is a political appointment, in both senses of the phrase. It is not a lottery, an examination prize, or a commodity available in stores.

If you believed that that was the sole reason she was chosen, wouldn’t you be obliged to say that her intellect was of first rank among jurists?

If I was pink, had four legs and a curly tail wouldn’t I be obliged to oink? If I am presented with a string of rhetorical questions attributing views to me that I nowhere expressed am I not obliged to agree that you are right about everything?

You seem to be conceding the point that she may very well have been chosen for other qualities. But wouldn’t among those very qualities quite possibly be her gender and ethnicity, in order to satisfy purely political demands?

The point is perfectly simple. White guys are the default category, which, as magistra points out, allows the mainstream commentariat to assume that group has no racial or gender identity. If you want to argue that 107 of the 111 Justices have been White Men thanks to a sheer coincidence falling out of a marvelous selection process that rests “solely on the constraint that they be the best jurist”, a process which presumably has only recently been corrupted by the introduction of “purely political considerations”, whereas before the skin color, gender and political views of the candidates were of no import at all, then – to quote a recent commentator – I suggest you ask yourself if common sense and elementary statistics would lead us to believe that.

I think your next move is to say “Aha! You are conceding that her selection is purely political” and assert that I have denied the existence of intellect and judicial capability.

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RonK, Seattle 05.30.09 at 12:19 am

Kieran — Where has anyone raised any question about Sotomayor’s IQ? Anyone? Anywhere? Here or elsewhere?

Do Crooked Timberjacks customarily equate IQ and intellectual heft?

ISTM this completely misrepresents the argument (such as it is).

And such as it is, remember it’s a purely retrograde argument — it has nothing to do with Sotomayor’s confirmation (which is a stone cold cinch). The only thing at issue is a moot argument as to whether Obama optimally should have nominated any of several other prospects instead.

85

Righteous Bubba 05.30.09 at 12:26 am

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Kieran Healy 05.30.09 at 12:46 am

Do Crooked Timberjacks customarily equate IQ and intellectual heft?

No. I was speaking their (your?) language in an effort to reach out across the partisan boundary that does so much to impede rational discourse in this country.

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Phil 05.30.09 at 11:50 am

Thanks, Kieran.

Alito:
“When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account”

And presumably he hoped that he would, more often than not, reach a better conclusion than a white male who hasn’t lived that life.

I was genuinely surprised, as well as shocked, to read that Sotomayor’s being criticised for pronouncing her own name properly (rather than “Soe Toe Mare”, presumably). Desperate stuff.

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frankly0 05.30.09 at 1:52 pm

Kieran,

It would be nice if you addressed the points I made rather than the ones you are inventing for me. And it would be awfully nice too if you could conjure up enough objectivity to refrain from calling those who disagree with you civilly “trolls”. Name calling of that sort suggests a mind that needs some prodding open.

I started out the argument by suggesting that you might say that you are confident that Sotomayor is of first rank intellectually, an equal to the best on the current court. You made the choice to refuse to make that claim; I was not twisting your arm not to do so.

Now, given that originally you had declared that Sotomayor’s academic success at both Princeton and Yale implied for a certainty that she was exceedingly smart, this leaves me wondering what you might have meant. Apparently, it does not, by your own account, imply that she is of first rank intellectually as a jurist. Does it mean she is average, at least, for the Supreme Court? Average (or at the 90th percentile? or at the 10th percentile?), at least, for the pool of candidates that might be considered for such a position? Now, given what you’ve refused to say, we have no idea what it might actually imply, even in your own mind. All we know now is what it doesn’t mean. If you don’t want to have others to speculate as to what you may have meant by your refusal to declare Sotomayor of first rank, despite the very evidence that you declare should close the books on her remarkable capacities, I should think you’d offer some explanation yourself.

Now, in what I argued further, what you would call my putting words in your mouth is what I call trying to draw some straightforward entailments from what you have admitted to — entailments which, perhaps, you might be unwilling to draw yourself, since you may not like them. You of course never really address those arguments; instead, you do your best to obfuscate them.

You seem to imagine that I was arguing or assuming that political considerations never came into play when white men were at issue. Apart from your apparent desire to find a way to discredit my argument by putting words in my mouth (wasn’t someone just complaining about that?) I can’t imagine why you might think that. I think that only too often all kinds of extraneous political considerations have played into such picks over the years. If all you are claiming is that Sotomayor, with the political considerations used in her selection, is likely no more undistinguished than any number of white men chosen for their political considerations, I’m not going to much argue — though, if political constraints are indeed being employed, and great weight was placed on finding a Latina, and Latinas constitute only 1-2% of available candidates (as Sotomayor herself seemed to argue was true of the high level judiciary), statistics would suggest that such a constraint would very likely exact a great price in terms of excellence as a jurist.

But, however that may be, here is the real point that both Rosen and Turley have been arguing, yet have been excoriated as sexist and racist for so arguing: given that we have a very, very limited number of appointments to make to the Supreme Court, it is important, as soon as possible, to give greatest weight to getting the best jurist from the left, the one most likely to serve as an intellectual counterweight to Scalia, to attempt to rein in his influence. Insofar as we are seeking to do that, then we pretty much are obliged to ignore anything other than those very qualities of intellect and leadership at issue. Insofar as any other, political consideration applies — including gender or race or ethnicity — then the product is very likely to be deeply compromised.

Clearly, the right wing has used some of its Supreme Court appointment opportunities to install the best possible jurists on their side — witness Scalia, Bork, and Roberts. (Obviously too they have used others for other political reasons — witness Harriet Meiers and Clarence Thomas). But when will liberals take an opportunity to appoint the best possible jurist on their side? Clearly that goal does not seem much to inspire you on this occasion, since you are quite willing to acknowledge that you have no reason to believe Sotomayor may be such a jurist, yet you defend her to the hilt. One wonders when it will be an important goal for you — if ever.

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Matt 05.30.09 at 2:17 pm

It’s hard to know what could make one the “best possible jurist” given that there are multiple dimensions to that, many of which are likely to be in tension with one another. (Scalia is clever, and has a way with a phrase that many like, for example, but it’s not clear that he’s moved any of his colleagues in any noticeable way, and his often ridiculous rhetoric hurts him as well. There’s some reason to think he pushed O’Connor away from him on some issues, for example. Beyond being clever there’s also little depth to his thought, so it doesn’t hold up over time. So, his strengths seem to lead to some serious weaknesses as well.) But, at least on some measures, Sotomayor seems to do quite well when compared to others on the courts of appeals, including as well or better than other recent choices and judges she’s been compared against. See here:

http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243482653
“by 2004-2006 Judge Sotomayor has, on several measures, exceeded her colleagues.”

Given her background, this isn’t surprising, though it might be disappointing for those who either believe in some mythical “best” candidate or who don’t want to let facts get in the way of their arguments.

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sleepy 05.30.09 at 3:08 pm

“But when will liberals take an opportunity to appoint the best possible jurist on their side? Clearly that goal does not seem much to inspire you on this occasion, since you are quite willing to acknowledge that you have no reason to believe Sotomayor may be such a jurist, yet you defend her to the hilt. One wonders when it will be an important goal for you—if ever.”

Tricky and smart, but sleazy.
Sotomayor is more qualified than Thomas by far; though republicans defended him and continue to, playing a game of political hardball the democrats are finally beginning to play.
Why they haven’t in the past is a questions for novelists and sociologists.

But you try to put democrats in the double bind, asking why they aren’t as ideological as republicans and then equating that with intellectual heft. But all that anyone here has said is that she’s an appropriate fully qualified choice, which by her record she is, while republicans have been attacking her as specifically unqualified. It’s that charge that is absurd. Are you defending that absurdity, or are you simply asking why the democrats aren’t more aggressive in their choices?

And I’m sorry but by my definition, and I admit I’m a bit of a snob, Scalia and Bork are intellectual bantamweights who make up in decibels what they lack in argument. Serious constitutional scholars (too serious to ever be considered for the court) tend to agree with that assessment.

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RonK, Seattle 05.30.09 at 6:42 pm

Kieran, you wrote “a white guy with Sotomayor’s background educational credentials would not be subject to any questions about his intelligence”. I inferred your belief that Sotomayor has been subject to questions about her intelligence. Was I mistaken?

Avoiding the shorthand of “IQ” — where has anyone ever questioned her intelligence? And what has this to do with “intellectual heft”, as understood in this hefty company?

[‘Righteous Bubba’ cites one instance, and one author’s self-cite of that same instance, which explicitly disclaim both evaluating her intelligence, and making her intelligence relevant to the discussion. And shame on Bubba for sending me over to read Ponnuru. Ick!]

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Matt 05.30.09 at 6:56 pm

Avoiding the shorthand of “IQ”—where has anyone ever questioned her intelligence?

You haven’t been following this very closely have you, Ron? I don’t blame you, but the “questioning of her intelligence” started early, with a piece from Jeffery Rosen in The New Republic.
http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085
Rosen “reports” unnamed sources saying she’s “not that smart”, saying that “word on the street” is that “she’s not the brainiest”, and so on. Rosen reported this without having read any of her decisions or getting anyone to talk on the record. His path was then picked up by many, many others. The claim that no one has questioned her intelligence isn’t at all plausible.

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Kieran Healy 05.30.09 at 7:03 pm

I inferred your belief that Sotomayor has been subject to questions about her intelligence. Was I mistaken? Avoiding the shorthand of “IQ”—where has anyone ever questioned her intelligence?

Have you been living under a rock? This whole thing got started with a journalist citing anonymous clerks who questioned her intelligence and her temperament.

What’s next? Maybe someone is waiting to insist that when you call someone “dumb and obnoxious” and say they lack the “intellectual heft” for the job they’re up for, this should not in any way be construed as evaluating their intelligence.

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RonK, Seattle 05.30.09 at 8:16 pm

Kieran, this is getting out of hand. Nobody called her “dumb and obnoxious”. That simply did not happen, any more than anyone between here and the outer fringe ever questioned her general intelligence.

Hemingway’s “dumb and obnoxious” was his tongue-in-cheek characterization (and mischaracterization at that) of Rosen’s article.

Nobody I have seen — from Rosen forward — ever suggested she lacks the “intellectual heft” for the job. The (now retrograde) argument is whether there were heftier candidates available, and whether Obama ought to have led with a bright bulb (like Sotomayor), or a frickin’ lighthouse.

In that regard, I note Tom Goldstein at SCOTUSblog, from a speculative post in July 2007:

… There is no reason to defer a Hispanic appointment with two highly qualified Hispanic women available. So the first seat will go to Sotomayor (to whom I now lean) or Wardlaw.

The second seat will go to a recognized intellectual heavyweight. That means Garland, Kagan, Sullivan, or Wood. …

Matt, thanks for the Posner update cite, which is a good substantial contribution to the discussion.

Note in passing, you falsify the record re Rosen’s piece. He said he hadn’t read “enough” opinions to reach a firm conclusion, not that he hadn’t read “any”. I’ll grant you one “not that smart” (though context matters), but you have inverted “not the brainiest” was uttered by one of Rosen’s sources only for the purpose of disagreeing with that very premise.

There are standards of fairness in argumentation, and they are being givien rough treatment here. Carry on …

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RonK, Seattle 05.30.09 at 8:18 pm

Errata: blockquote in preceding post is truncated one graf early.

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peter ramus 05.30.09 at 8:55 pm

Nobody called her “dumb and obnoxious”. That simply did not happen, any more than anyone between here and the outer fringe ever questioned her general intelligence. —RonK, Seattle

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench…” —Jeffrey Rosen, OuterFringe Magazine

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Kieran Healy 05.30.09 at 10:20 pm

Kieran, this is getting out of hand. Nobody called her “dumb and obnoxious”. That simply did not happen,

Hemingway at NRO:

This article from Jeffrey Rosen at TNR about potential Supreme Court nominee Judge Sonia Sotomayor of the 2nd Circuit is pretty astonishing … [Quotes Rosen at length] … Oof. So she’s dumb and obnoxious. Got it.

Hemingway’s “dumb and obnoxious” was his tongue-in-cheek characterization (and mischaracterization at that) of Rosen’s article.

OK, no more troll-feeding for me.

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sleepy 05.30.09 at 10:26 pm

RonK,
So according to you, linking to Scotusblog, Sotomayor is fully qualified. Right? So according to you we shouldn’t even be having this conversation about whether she’s qualified. Right?
You’re defending sleaze and demanding that our only response must be to describe her as a saint.

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peter ramus 05.31.09 at 2:57 am

Sticking by your guns, eh?

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RonK, Seattle 05.31.09 at 3:00 am

Sorry for the dup post …

Kieran, yes, Hemingway is characterizing what Rosen wrote, and disapprovingly so (as he has repeatedly taken pains to clarify). Do we sarcasm tags around “Off … Got it.”?

‘sleepy’ — Sotomayor is fully qualified. There has never been as argument about that, in Rosen or anything after. Neither is there any argument about whether she is smart — only whether she is “that smart”, with the context and inflection of “that” missing. Neither is there any ‘sleaze’ to argue about – in Rosen, or in SCOTUSblog two years back, for that matter.

The points in controversy, as far as I can find them, are
1. Whether she is an “intellectual heavyweight” (within the reference group of SCOTUS potentials)
2. Whether (in terms of strategic effectiveness for the forces of Light) a heftier pick would have been more effective.
3. Whether anyone can take issue with (1) or (2) without being a racist troll or some such.
4. Whether there is any middle ground between identifying anyone as heftiest pick on the short list, and identifying them as an outright dummy. [ Otherwise, the outrage displays – and selection of targets – makes very little sense whatever … do they?]

I suspect there is fertile unexplored territory overlooked in the indignation-fest, along the lines of what we mean by “intellectual heft” on the bench. I further suspect is has something to do with the role and emphasis on theory within a discipline (as has been explored at length at CT among cooler heads where other disciplines are involved).

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RonK, Seattle 05.31.09 at 3:15 am

ramus — Sticking to my guns? I’m not the one suggesting that heated debate entitles us to put words in quotes and attribute them to our adversaries.

I understand much of the community believes they have witnessed an atrocity, and are engaging in socially-obligatory shaming – but no such atrocity has occurred. I believe it’s prudent to deploy outrage sparing in defense of The Good, and in particular to reserve it for offenses that have actually been committed.

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sleepy 05.31.09 at 4:20 am

“The points in controversy, as far as I can find them, are…” whether:
she’s “un-American”
she “hates white people”
she’s “a racist”
she prefers “empathy” to the rule of law
she’s a member of “the Latino KKK”
she has the right “temperament”
And more
Scalia is an annoying loudmouth and a bitch and he ended up on the court
And again: no one on the Supreme Court is an intellectual heavyweight, but as I’ve said before, I’m an intellectual snob. I don’t even take the people who run this page very seriously. So here’s the question for you, putz. Would the democrats pull any of those lines against a republican?
Alito was a proud member of a racist organization.
What was the response to that?
I’m feeding the troll but it’s kind of fun. I’m amazed that you even bother.

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peter ramus 05.31.09 at 5:13 am

I’m not the one suggesting that heated debate entitles us to put words in quotes and attribute them to our adversaries.

Clearly. You’re the one suggesting you’re entitiled to deny that words in quotes say what they plainly say, but mean what you say they mean instead. Quite a different thing, RonK, Seattle.

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Righteous Bubba 05.31.09 at 5:33 am

‘Righteous Bubba’ cites one instance, and one author’s self-cite of that same instance, which explicitly disclaim both evaluating her intelligence, and making her intelligence relevant to the discussion.

Making sure it’s mentioned is part of the smear effort. If it’s not worth mentioning it’s not worth mentioning.

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Bloix 05.31.09 at 9:35 pm

Sebastian (#64) is correct that the test was designed to test true for job skills. But the City could not have proved that the test was so predictive of ability that it identified the best candidates for the jobs in rank order.

For anyone who is a glutton for punishment, a lengthy and clear explanation of the background facts – which shows the bind that the City was in – can be found at http://www.todaysworkplace.org/

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