Sotomayor

Called it in one Kieran.

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.

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.

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.

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.

[aeiou]Wow, there sure are a lot of bleeding-heart liberal morons here. Sotomayor sucks. She’s completely divorced from reality and a stupid idealistic liberal who clings to her anti-business views whether they’re true or not.

In other words, she’s very much like your readers.

And for all you Obama-worshippers: I assume most of you don’t work, but for those of you that do I can’t wait until you see your 2010 tax bill. Hussein is going to screw you front, left and sideways. Those of you who don’t work, get used to it – he’s already destroyed the economy so badly that even your ‘alternative’ coffee shop is going to get hammered. Oh, but you’ll get your insurance paid by someone who does work. Yay!

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

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.

“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).

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

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

Don’t worry, that was perfectly obvious.

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.)

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.)

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.

“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.

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.)

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.

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.

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

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.

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

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.

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.

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.

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

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.

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.)

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.

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.

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.

“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.

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.

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.

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.

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?

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.

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?

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.

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.

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?

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.

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.

“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.

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.

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 …

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

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.

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).

“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.

‘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.