Patterico's Pontifications

6/6/2009

What Democrats Want: Sonia Sotomayor

Filed under: Judiciary,Obama — DRJ @ 3:50 pm



[Guest post by DRJ]

A lot has been written about Sonia Sotomayor’s nomination as a Supreme Court Justice. Here are my two cents.

There are many viewpoints regarding what kind of legal training and experience a Supreme Court Justice should have but, in modern times, virtually all Supreme Court nominees have graduated from law school, are licensed attorneys, and have commendable experience as lawyers, teachers or judges. Thus, for all their differences – in geography, education, and experience – modern nominees are more alike than different when it comes to legal ability.

Furthermore, where there has been controversy about a nominee’s legal ability, it has largely come from intra-Party debates. Thus, conservatives challenged Harriet Miers’ legal skills, and liberals debate whether other candidates — like Judge Diane Wood or Solicitor General Elena Kagan — are more qualified than Sotomayor.

Democrats won the last Presidential election so instead of complaining about Sotomayor’s legal ability — something that will not impress a Democratic Congress or many Americans – Republican leaders should acknowledge Sotomayor has the legal ability to serve as a Supreme Court Justice and on that basis she should be confirmed.

At the same time, Republicans should highlight the different personal qualities Democrats and Republicans look for in judicial nominees. Barack Obama picked Sotomayor for two personal qualities: Because she’s a Latina and because she brings empathy to her decisions. Apparently the traditional legal quality of impartiality wasn’t a factor, and even Sotomayor acknowledges impartiality is overrated:

“The aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.”

Unlike Obama and many Democrats, Republicans should clearly state that impartiality is more important than a nominee’s empathy or race.

Admittedly, I don’t know if this is a winning strategy. Americans just elected their first black President who is adept at connecting emotionally with people. It may be that empathy and race are the qualities today’s Americans look for in a leader or a judge. But I think most Americans realize a judge should be impartial and rule according to the law, not swayed by empathy or race. I hope Republicans will lay the groundwork that makes this difference clear now and will remind voters in future Presidential elections.

— DRJ

45 Responses to “What Democrats Want: Sonia Sotomayor”

  1. I don’t see a downside to not voting for SS. As Rush has been shouting all week, the hispanic vote is lost anyway.

    I believe there is great progress to be made by calling her out on her racism and gender bias. Just as there is in calling out BHO as a fascist.

    It may not payoff until 2012, or even later, but it will help the party, and then the country, regain its soul.

    Ed from SFV (a53c07)

  2. I don’t care whether Senators vote for or against Sotomayor but I do want Senators and other Republicans to articulate the differences between Democratic and Republican judicial nominees. We need to send a simple message:

    If you vote for Democrats, you get judges whose focus is race and empathy.

    If you vote for Republicans, you get judges whose goal is to be impartial.

    And I should have just said this instead of my long-winded post. It’s funny how clear things get after I put up a post.

    DRJ (180b67)

  3. You forgot she also has breasts! Latina breasts!

    happyfeet (2d133f)

  4. Against her bosom she will cradle justice and let it cry and cry until it feels better and a New Jurisprudence will be nurtured. The thing about Clarence Thomas is, he can’t do that. He just can’t.

    happyfeet (2d133f)

  5. Letting Democrats cruise to victory is not a winning strategy.

    Many Dems, including Obama, voted against Roberts and Alito for purely partisan reasons. Why should Republicans extend to him a courtesy that he did not give to Bush’s nominees?

    Do you think that if Republicans keep giving in to Democrats, eventually Democrats will decide to start giving in to Republicans?

    Daryl Herbert (a32d30)

  6. Daryl,

    I don’t care how the Republican Senators vote here because it probably won’t make a difference. However, they should clearly state that, even if Sotomayor is legally qualified, she is not impartial and doesn’t pretend to be. And the Democrats want it that way. So Republicans should convey that to the American people.

    DRJ (180b67)

  7. Daryl,

    In addition, I agree there may be political benefit to voting No and that’s fine, but my point is that Republicans spend too much time trying to show a nominee doesn’t have adequate legal ability. With Bork and Thomas, the Democrats changed the debate to personal qualities and Republicans need to respond to that. Republicans need to make it clear that when you vote for Democrats, you may get judges who let race, empathy and (as happyfeet noted above) gender impact their decisions.

    DRJ (180b67)

  8. My opinion is that Americans don’t really want impartial judges. They want judges and politicians that take the positions and do the things they agree with. Principles and objectivity don’t enter into the equation. If principles really mattered a snake oil salesman like Obama would be a city councilman in Chicago.

    glenn (2d382b)

  9. Had Justice Roberts thought, wrote, and stated the words that Sotomayor did, he would have been forced to withdraw his nomination some time ago, amidst a sh*tstorm of controversy. I concede her legal qualifications, and agree that she should be conformed because she passes the Constitutional requirements, and I do not want my side acting like Schumer. But make no mistake about it, she will be a horrific bad racialist SC Justice. Her statements and positions would disqualify a white male in a heartbeat.

    JD (aff952)

  10. “Republicans need to make it clear that when you vote for Democrats, you may get judges who let race, empathy and (as happyfeet noted above) gender impact their decisions.”

    Welcome back, DRJ! Time for some questions:

    1. Are empathy and collegiality part of the art of persuasion when it comes to Supreme Court decisions?
    2. Why do conservatives automatically presume that their fellow conservatives have the same lack of empathy and collegiality that they do when it comes to personal traits?

    I ask these because CJ Roberts, from all accounts, is very personable and collegial. What makes any of us think that CJ Roberts can’t work on Justice Sotomayor’s various ways of decision making to his benefit? Why is it automatically assumed that the only tool in the conservative legal toolshed is intellectual heft?

    Frankly, this inability to stop anything the Dems can do (based supposedly on sheer lack of numbers) should’ve forced conservatives and Republicans to find other ways to further their ideas. I guess “fighting in the last ditch” is the only thing certain conservatives know how to do.

    Brad S (5709e3)

  11. Brad,

    I’m not a Supreme Court expert and before the internet, my main knowledge about how the Court works came from Woodward’s The Brethren. But I think it’s fair to say that how you get along with your co-workers – whether it’s in an office or a court — is important. I also believe you can be collegial and empathetic regardless of Party. My point is that Republicans don’t view qualities like empathy, race and gender as the most important qualities for a judge to have.

    In addition, a charming personality can only take you so far in life. There must also be an ability to back it up with substance, and in the judiciary that means a judge must put in the hours it takes to master the law and have the intellectual ability to think and write well.

    What I am talking about is something we used to call judicial temperament. It means a good judge knows the law and has the discipline to apply it fairly and impartially. We seem to have misplaced that concept in the past 20 years.

    DRJ (180b67)

  12. “What makes any of us think that CJ Roberts can’t work on Justice Sotomayor’s various ways of decision making to his benefit?”

    Brad S. – Scalia writes some absolutely devastating dissents the reasoning of which you have to assume was discussed with the other Justices before the Court rendered its opinion. They haven’t seemed to affect the thinking of his fellow Justices in subsequent cases based on my observations.

    daleyrocks (5d22c0)

  13. “In addition, a charming personality can only take you so far in life.”

    DRJ – I agree. A good body helps a lot too.

    daleyrocks (5d22c0)

  14. I agree. I think the Republicans need to take the high road here. The Democrats have made it clear that they have no issue with opposing a justice based on political reasons (Bork, Thomas, Roberts, Alito). Hell, Pres. Obama himself said that the only reason he opposed Alito was because of his ideology.

    I think the Republicans need to take the high road. Take the social issues off the table. No litmus tests on abortion or gay marriage. These are non-starters with the American public and will only make the Republicans look petty. I would like to know her stance on guns since she has written that “the right to possess a gun is clearly not a fundamental right.” I would like to know whether she was denying the right to own a gun or if she was saying that the Supreme Court had not recognized a governmental obligation to protect one’s right to own a gun (if that makes sense).

    The fact that Sotomayor will not change the political makeup of the Court and the fact that she doesn’t seem to be all that radical (in my opinion) make me want to see the Republicans question on her on the specifics. Go after her on Ricci v. Destefano. Go after her on the Maurice Clarett case. Make the hearings about her specific views on her specific cases, not on how she might rule in future cases. The Republicans have a chance here to show that they are not petty like the the Democrats and that they will vote for a qualified justice without letting politics get involved.

    tjwilliams (831c6e)

  15. 1.I don’t see a downside to not voting for SS. As Rush has been shouting all week, the hispanic vote is lost anyway.

    Are there enough old, rich, and white men left in the US to keep voting for your candidates? The middle class used to be a decent block of votes for the GOP, but in a twist of irony conservatives’ own policies has shrunk that category to a meaningless percentage.

    dylan (a7cfa3)

  16. Judges are like umpires … Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.

    I recently heard John Bolton discuss Sotomayor and in part he mentioned Justice Roberts’ statement in making the point that judges cannot move goalposts in order to make an issue fit into any preconceived thought, position or preference, but the goal is impartiality and color blindness, hence the justice is blind metaphor. Certainly there is a very serious discipline involved and if Sotomayor views it as an aspiration, does that mean she believes it unattainable? And DRJ, you say, for Republicans the goal is for judges to be impartial – do you believe that to be attainable?

    Does Sotamayor assume that because she is unable to rule without her history and/or experiences impacting her decisions (whether minimally or greatly), does she believe other justices or nominees are equally unable? Has she set herself as the standard?

    Dana (aedf1d)

  17. Dana,

    I don’t think anyone can be completely impartial but it doesn’t sound like Sotomayor was saying that. I think she doubts the value of impartiality.

    DRJ (180b67)

  18. dylan, so you have no intention of confronting the fact that the debate in the GOP today is solely whether or not to stoop as low as Democrats?

    I thought not.

    SPQR (26be8b)

  19. So you have no intention of confronting the fact that the debate in the democratic party is to even ask for input into any legislation when the public so overwhelmingly mandated for change from the old white guy policies of trickle-down economics?

    I thought not.

    dylan (a7cfa3)

  20. Gosh, folks. Doesn’t dylan sound a touch familiar? JD, what say you?

    Eric Blair (06f82d)

  21. I sound like a guy you work with who has common sense and pays attention to facts?

    dylan (a7cfa3)

  22. Gosh, folks. Doesn’t dylan sound a touch familiar? JD, what say you?

    Comment by Eric Blair — 6/6/2009 @ 8:17 pm

    I think it’s the same guy who tried to honk some other guy’s wonk at the local sports bar, this evening, and got taken outside for a lesson in man-to-man behavior.

    the nk who is following Andrew Sullivan's precedent (c788b4)

  23. dylan, common sense and facts? Uh, no, what you have are vapid talking points. And an inability to address the topic.

    SPQR (26be8b)

  24. No, you sound quite a bit like DCSCA, a banned commentor.

    Eric Blair (06f82d)

  25. DRJ,

    I think she devalues impartiality so much so that perhaps she not only doesn’t see it as an attainable goal but one far less important to pursue in light of her personal experiences. While I agree complete impartiality is impossible, shouldn’t that be the ultimate goal of a judge?

    Dana (aedf1d)

  26. argh. Shouldn’t that ultimately be what a judge continually strives for?

    Dana (aedf1d)

  27. Barack Obama picked Sotomayor for two personal qualities: Because she’s a Latina and because she brings empathy to her decisions.

    Perhaps. Interesting that you’d omit a third quality: her experience on the bench. The Republican Party is in serious need of some younger faces with fresh, contemporary voices. The current noise from the GOP seems to be the same old song. Very sad.

    EYEONPOWER (9d1bb3)

  28. A judge should be disinterested but not uninterested. He should certainly not have a stake in the case before him. On the other hand, I have been learning the law for 30 years and have my own views and questions about it. I have often expressed them here. Having an opinion about what the law, is or should be, in some area, is not really partiality.

    the nk who is following Andrew Sullivan's precedent (c788b4)

  29. Sorry, DRJ, but I’ve always been taught that appeasement and surrender are not viable strategies.

    Steve Levy (430f8c)

  30. Steve Levy,

    How is this surrender? I view it as comparing two value systems so voters can choose.

    Eric Blair,

    I think you may be right. Dylan does sound a little like DCSCA.

    [Maybe not. Sorry, DCSCA. — DRJ]

    DRJ (180b67)

  31. How is it taking “the high road” to back away from our principals? This nominee is crap. The evidence mounts by the day and probably more will be found. It seems the first instinct of many on the right now is just concede to the left. How in the hell is that getting us anywhere?

    Many were giving in the first day after she was announced and we didn’t even have the full story yet. It sure as hell does no harm for every Republican in the Senate to oppose her. Making political calculations based on the Hispanic vote is nonsense. The libs oppose minority candidates all of the time and they have complete control of the government!

    What is this nonsense that “she is qualified” just because she is a lawyer? Big deal! We rose up against our own guy on Harriet Meyers and we were right to do so. This is the SUPREME COURT we are talking about here, not some local judge in some podunk town! The consequences to the country are enormous!

    There are totally legitimate reasons to oppose her nomination and none of it has to do with her race or gender.

    Ken (67885e)

  32. #31- Eric Blair,

    I think you may be right. Dylan does sound a little like DCSCA.

    Comment by DRJ — 6/6/2009 @ 9:13 pm

    DRJ: My ears were burning. FYI, this DYLAN chappie is not DCSCA. I stop by for a sick pal on occasion who cant get to her laptop to read up and I find you’re posting references to me I cannot respond to. Nice. Speaks volumes about the conservative mind set, doesn’t it. Censorship. Very Germanesque.

    Been away by my choice, as the “Big Pee” is in no position to make glib demands on the content of my postings given the amount of caustic crap he lets fly here toward folks witrh his name on it. I told him once before if Chrysler didnt blame Goodyear for the bad cars they made. Still, after a month, you’re commenting about me, eh? Pathetic. Ever the echo chamber. Nice to be remembered. Same dozen conservatives hurling racist slurs at the First Lady or looking for genuine black helicopters hovering over car lots. There’s only one DCSCA, and if you had the balls to handle opposing commentary you’d know I do not tolerate imposters. But then, you’re a woman, and have none, right? Grow a pair. Let other voices be heard.

    The Banned In Boston and Pattericoville DCSCA (9d1bb3)

  33. “As Rush has been shouting all week, the hispanic vote is lost anyway.”

    Ed from SFV, El Rushbo has something to say to folks who take the sort of message you paraphrased into heart:

    “….Not my political ideas. Conservatism didn’t buy this house. First and foremost I’m a businessman. My first goal is to attract the largest possible audience so I can charge confiscatory ad rates.”

    Have the wheels on the bus been going Thump-Thump-Thump for you, Ed?

    Brad S (5709e3)

  34. Oops, forgot the link to the newspaper that so dutifully documented El Rushbo throwing conservatives under the bus!

    http://www.nytimes.com/2008/07/06/magazine/06Limbaugh-t.html?pagewanted=all

    Brad S (5709e3)

  35. “The business of America is Business!” …
    Calvin Coolidge

    AD - RtR/OS! (b149bd)

  36. oh. My understanding is it’s all through the town what the wheels of the bus go round and round, Brad.

    Confiscatory ad rates. Hah. Only a dirty socialist.

    happyfeet (2d133f)

  37. Actually, happy…Rush uses those words when he speaks mockingly about his success – it’s the beauty of the free-market system that when you have a highly in-demand product (his air time), you get to charge the Hell out of it because they’re all lined up to pay, because it’s worth it in the market place.

    AD - RtR/OS! (b149bd)

  38. oh. It’s just what he’s confiscating aren’t the monies he’s charging advertisers – it’s the monies competing media properties seeking to sell a relatively affluent somewhat male-skewing highly-informed audience aren’t collecting what is getting confiscated.

    Tell Mr. Limbaugh to call me and I will explain. 🙂

    happyfeet (2d133f)

  39. I’m sure that if you could show him a business model that would increase his revenue without having to increase his audience share, he would be most appreciative.

    AD - RtR/OS! (b149bd)

  40. He knows that already. You get more better people to listen to you is all. That’s how The West Wing stayed on without having a really huge audience the last few seasons. The audience they did have were rich and smart and white.

    happyfeet (2d133f)

  41. In any other context these complaints you’re lodging would be seen for the nonsense they are. Experience matters, but it’s not all there is to it. A candidate who acknowledges that is to be welcomed, not fought.

    paleblueeyes (8843e6)

  42. As an unintelligent Irish White Male, I fail to understand the post here.

    Dmac (f7884d)

  43. (I need an editor, I have some ideas that should make an entertaining comment, but I imagine it will flop.)

    Speaking of umpires, changing the rules, and blind justice (those under 40 may need assistance in understanding historical references):

    Once upon a time in the ol’ U.S. of A., the idea of impartial judgement was seen as the great goal of the practice of law, the height of accomplishment in all human affairs, both private and public. It was assumed that the answer to prejudice against those of different skin color or hair length was to stop it. That’s right, just stop it.

    From the most serious treatments of the problem we have the famous quote from Rev. Martin Luther King, Jr., who dreamed of the day when a person would be judged according to the content of their character , and not the color of their skin (or the length of their hair, or ethnic heritage).

    On the lighter side, we have the story of the Alice’s Restaurant Thanksgiving Day “Massacree”, where Arlo and the rest of his hippie, liberal, Sen. McGovern-backing, long haired friends rejoiced at the stroke of luck they had when they encountered “blind” justice.

    Somewhere along the way either the rules were changed or the umpires started calling it a different way. Now “blind justice” is seen as unfair and inadequate by many who influence the popular culture as well as our President.

    Though roughly 40 years have passed by, I think the answer to prejudice is the same, just stop it. Trying to “make-up” for one injustice by assenting to another on somebody else of a different group is a dead end.

    Arlo for Supreme Court.

    MD in Philly (3d3f72)

  44. Sorry, but I’m sick and tired of the double standard. It’s fine for the Dems to filibuster the perfectly qualified nominees of a Republican President on partisan grounds, apparently, but if the Republicans even think of returning the favor, they’re suddenly outside the pale?

    Uh-huh. Pull the other one, why don’t ya?

    mojo (8096f2)


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