Sotomayor

Yesterday's decision by the Supreme Court to reverse Sonia Sotomayor's ruling on the New Haven firefighters case was undoubtedly a blow (albeit, not fatal) to the woman who aspires to sit on the nations' highest court. The Philadelphia Inquirer offers this viewpoint:

“Yesterday's ruling that white New Haven firefighters were unfairly denied promotions because of their race became an instant talking point for foes of Sotomayor.  "She was among three appellate judges who had rejected the white firefighters' claim of discrimination.  "Conservatives argued that the appellate decision showed her to be a judicial activist who allows biases - particularly her backing of affirmative action policies - to taint her judgment.”

As the article goes on to state, this ruling does not seem to be the death knell for Sotomayor, however the ruling puts a spotlight on one of politics' dirty secrets: Race. Even while Barack Obama and his family occupy the White House, the politics of race has become a double edged sword for the administration.

During his presidential campaign, critics were silenced by the accusation, or fear of the accusation, of being a racist, even as Obama used his background numerous times to debunk claims that he was “not black enough” from minority voters. Often, Republicans, long saddled with the racist label, were stunned into silence by the often vicious attacks from the left. 

Another example of racial politics occured during the press conference to announce Judge Sotomayor's nomination to the Supreme Court. While there have been calls from such organizations as the National Council of La Raza to focus on Sotomayor's judicial record, the White House chose to attempt to batter the public with feelings of guilt. There was:

“...the Inspiring Icon of the White House narrative, the Latina born in the Bronx, raised by her widowed mom who sacrificed everything for her daughter. With smarts and guts, Sotomayor graduated from Yale Law School, only to have her impeccable qualifications questioned by a prospective employer who'd been conditioned by race-based government policy to wonder if she'd made it that far only because of her Hispanic heritage.

"She's rightfully a beacon of hope to every Latina mother and daughter, from the Bronx to Chicago's Little Village and on to East L.A. The girls in the neighborhoods can see Sotomayor and aspire to greatness.

"But the other side of the story also speaks to racism. Not the knuckle-dragging kind shrieked by ignorant barbarians. That's easy to condemn, whether the knuckles are white, black or brown.

"Yet there is another kind. The media don't recognize it as racism and instead lard it with virtue, calling it by its Orwellian name: affirmative action. Yet many know it by what it is: government-backed racial preference.”

As an African American mom twenty plus years Sotomayor's junior, I lack the richness of her experiences, but not my own. Few people of color, or even those without a substantial income, do not have some type of compelling story. Poverty transcends race and background and many share a kinship born of struggle. However, that does not mean that special treatment or quotas are in order. Independent Columnist Michael Gaynor sums up this point well.

“It has been reported often that Judge Sotomayor graduated from Princeton College summa cum laude and was an editor of the Yale Law Journal, each a very impressive accomplishment, if achieved on the basis of merit.   "But, when Judge Sotomayor called herself 'the perfect affirmative action baby' and claimed inability to define merit, what was she really saying about her fitness to be a Supreme Court Justice?  "Did she mean that she was graded and judged less demandingly at Princeton and Yale and that was a good thing that paved her path to America's highest court?  "Is she 'perfect' for the position, or necessarily not up to par?  "Personally, I prefer to choose professionals, such as surgeons and dentists, based solely on merit.  "Likewise, I think that race-based grading and affirmative action Supreme Court Justices appointments are counterproductive indulgences better avoided.”

The inherent racism in the whole approach of the administration regarding nominations and attempts to silence critics have actually done more harm to minorities in general... Read more here.

by  Lance Thompson  

I’ve been having trouble coming up with a column lately, and certainly not because there are fewer official decisions to object to.  Rather, I find it difficult to express my objections to current administration policy with the existing vocabulary, without veering into invective.  Therefore, I decided to make up a few of my own terms to deal with the issues before us.

For example, how does one describe an administration that seems completely divorced from the reality of the nuclear threats from Iran, North Korea, Communist China and whoever ends up running Pakistan?  But one must also address the relentless apology tours of the President as he asks forgiveness for our military’s fight against oppression, our nation’s imprisoning of terrorists, and our moral leadership on the world stage?

What is the term for a president who is both asleep at the wheel and endlessly seeking forgiveness?  NAPOLOGIST.

What is the term for a Supreme Court nominee who openly ridicules the system of checks and balances that underpin our Constitution, vows to legislate from the bench, and believes that her own Hispanic heritage and gender make her more qualified than any white male?   But the term must also infer the widespread outrage and reaction this nominee causes in the opposition.  Cultural and sexual chauvinism and incited panic would both be encompassed in the term HERSPANIC.

We need a word that conveys a president who has spent four months multiplying our massive debt with unprecedented spending, but also needs three jets to take the First Lady on a dream date to New York, including one plane just for the press.  A president who is unconcerned with the fiscal realities of the nation, yet fully capable of lavishing his attention on his own social calendar can only be called OUTDATING.

How does one describe a President who, during his campaign, vowed to close Guantanamo Bay and bring the prisoners to the United States for trial and incarceration?  But the term would also have to include the refusal of any governor to host the prisoners, and the president’s own immediate reversal of his own policy.  If one were to advise this president to carefully study a situation before making unenlightened decisions that would not lead embarrassing situations, it might be called GIT MO INFO.

What do you call a White House press secretary who never answers a direct question, speaks in sentence fragments that would mystify the most devoted text messenger, and whose incoherent syntax defies analysis?

This master communicator explains policies with a series of unintelligible monosyllables, ducks challenges with a dismissive glazed-over expression, and considers giggling an effective verbal riposte. This executive staff position should simply be known as MISPOKESMAN.

I’m sure more terms will arise as events dictate, but we should apply these first few as needed.  I’ll be on holiday for the first half of June, so maybe the next couple of weeks’ events will inspire an entirely new vocabulary.

First, let's look to some of the statements presented in defense of The Honorable Judge Soto.

1.  Our very own Nando:

Let me quote to you the words of Antonin Scalia from the 2002 decision Republican Party of Minnesota vs. White:

In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed.

How is what he said so very different from what Sotomayor said?

Here Nando is being lazy.  I suspect he is just repeating "research" from lefty websites and repeating them as gospel truth.  The case Nando cites, Republican Party of Minnesota v. White, dealt with a First Amendment case in which state judges in Minnesota were elected by popular vote but were nevertheless forbidden from discussing certain topics during their election campaign.  SCOUTS ruled that this restriction was a violation of the First Amendment.  So this case dealt with STATE JUDGES, not federal ones, and didn't even deal with judicial activism as a core issue.  Nevertheless:

(a) Scalia is a federalist.  It is an entirely consistent federalist position for Scalia, or anyone else for that matter, to admit that Minnesota state judges are little activist hellraisers, as a statement of fact and not of approval, yet still decry judicial activism on the federal bench.

(b) But that isn't even what Scalia is saying in this case.  This quote, found in a footnote buried at the bottom of his opinion (I'm a little weirded out that this particular Scalia quote was so readily available to you), was part of Scalia's response to Stevens' and Ginsburg's dissent on the case.  Here is the entire footnote (you'll have to read the opinion yourself to understand the terms):

12.  Although Justice Stevens at times appears to agree with Justice Ginsburg’s premise that the judiciary is completely separated from the enterprise of representative government, post, at 3 (“[E]very good judge is fully aware of the distinction between the law and a personal point of view”), he eventually appears to concede that the separation does not hold true for many judges who sit on courts of last resort, post, at 3 (“If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls”); post, at 3, n. 2. Even if the policy making capacity of judges were limited to courts of last resort, that would only prove that the announce clause fails strict scrutiny. “[I]f announcing one’s views in the context of a campaign for the State Supreme Court might be” protected speech, post, at 3, n. 2, then–even if announcing one’s views in the context of a campaign for a lower court were not protected speech, ibid.–the announce clause would not be narrowly tailored, since it applies to high- and low-court candidates alike. In fact, however, the judges of inferior courts often “make law,” since the precedent of the highest court does not cover every situation, and not every case is reviewed. Justice Stevens has repeatedly expressed the view that a settled course of lower court opinions binds the highest court. See, e.g., Reves v. Ernst & Young, 494 U.S. 56, 74 (1990) (concurring opinion); McNally v. United States, 483 U.S. 350, 376—377 (1987) (dissenting opinion).

Instead, Scalia is pointing out the inconsistent position of Stevens and Ginsburg.  That is the point of his footnote.

(c) Finally I think everyone would admit, even Scalia, that judges should, on occasion, "make law"; for instance, I don't think anyone has a serious problem with judges ruling that Internet communications are also protected by the First Amendment, even though the Founding Fathers had no conception of the Internet when they wrote the Constitution.  That is because this "making law" is consistent with well-established principles and the original intent of the Constitution.  What we conservatives decry as judicial activism is when judges "make law" based more on their own opinion, or on "changing standards of the times", or on "international opinion", rather than on well-established principles or original Constitutional intent.  That's the real odious part.  So the "lawmaking" that a federalist, strict constructionist judge like Scalia would make is a lot different than the "lawmaking" that a liberal "living Constitution" judge would make.  So how is this relevant in Soto's case?  Well, she certainly admits that the Court of Appeals "is where policy is made" even if she later giggles and feigns not advocating it.  But what is the policy that she would make?  Would it be original-intent policy, or would it be policy based on "changing standards of the times"?  Considering that Soto was nominated by a liberal president, I'm not hopeful on the former.

2. On Soto's much-quoted "wise Latina" comment, defended by our own Jim Dandy:

..when you place it in the context of what was being discussed: 

Race and Sex Discrimination cases! 

There is no question that a Justice who is a woman and a minority would have a different perspective on cases where Race and Sex Discrimnation is involved, would be able to understand the issues better, and therefore be more equipped to render a better conclusion.

Different perspective?  Sure.  But how would this different perspective lead to a better conclusion on any case, even on a race or sex discrimination case?  After all, if she's doing the things that all good non-activist judges are supposed to do - follow original intent, follow legislative intent, follow stare decisis - then who cares what kind of experiences she's had?  All that really matters is her knowledge of the law.  Which leads me to the next point...

3. On Soto's record, presented by BWall:

Sotomayor is anything but a flaming liberal based on the opinions that I have read: she favors judicial restraint in policy-making, has not ruled to extend rights beyond their constitutional basis, and favors consensus with conservative colleagues...

So according to BWall, she's the model jurist.  (More on this later.)  But to the extent liberals believe this, it stands in direct conflict with the intent of her "wise Latina" comment.  Exactly what part of "judicial restraint" means that "wise Latinas" get to make better decisions than white males on sex discrimination cases?  It doesn't.  A person who truly favored "judicial restraint" would be the first one to lambast her for her "wise Latina" comment.

Which leads me to conclude that liberals are trying to pull a fast one here.  They are trying to persuade us that it's possible to have a judge who is not a judicial activist, yet still agrees with the core ideas of identity politics.  Identity politics, by its very nature, is a corruption of justice; it suggests that there should be different standards for different individuals depending on race or sex.  If a judge hears a case on sex discrimination, the race or sex of the judge shouldn't make one whit's difference because justice is blind.  The identity politician, on the other hand, would say that the "better decision" - or really, the only valid decision - can be reached if it is decided by a judge belonging to the same victim class as the oppressed.  Why?  Because, according to the identity politician, justice should not be blind - the scales of justice should be tipped towards the oppressed merely because the judge and oppressed share some common heritage.

So, libs, pick one: either she's a judicial activist who decides cases "wisely" based on her membership in the Coalition of the Oppressed, or she's a model judge who eschews such nonsense.  But you can't have it both ways.

4. Her real record: It is true that there isn't a whole lot of controversial stuff, because mostly what appeals judges do is hear cases from death row inmates or illegal immgrants being deported.  But there are still causes for concern.

(a) Blackman vs. NYC Transit Authority - in this case, Blackman worked for the transit authority and made threatening statements against his supervisors while on the job, for which he was fired.  Blackman took it to court, claiming it violated his free speech rights.  And Soto's court agreed with him.  Oh, did I mention that Blackman also just happened to be the president of the local union chapter representing the transit authority workers?  Soto certainly took notice:

Blackman was an active union member, and a vocal advocate on a variety of issues, including workplace safety. He was, at the time of his December 4 and March 1 comments, the elected local Union Chairman. His violent comments can be viewed against the context of his struggles and frustrations with Transit Authority supervision over these and other concerns — concerns which transcend his own personal interests. It would not be impossible, therefore, to take Blackman’s March 1, 2004 comments as having, to some extent, touched on matters of public concern.

So here we see Soto's "wise Latina" side emerging: because Blackman's just a frustrated union leader working selflessly on behalf of his union brethren, so his violent threats against a supervisor ("I have a .38 and I'm not leaving") can be excused.  Soto sides with the stereotypical "oppressed", e.g. labor, against the stereotypical "oppressors", e.g., management.

(b) Boykin v. KeyCorp: In this case, Boykin, a black woman living in Georgia, tried to get a home equity loan on a house that she owned, and rented out, in Buffalo.  KeyCorp turned down her application because she didn't really live in Buffalo.  Boykin sued, alleging it was really because she was the victim of discrimination.  The circuit judge dismissed her case, but Judge Soto reversed the decision.  Why?  For a bunch of reasons: because the rules about filing deadlines are vague and contradictory, Boykin didn't really miss the deadline so she should be given the benefit of the doubt; because, even though Boykin couldn't point to an affirmative act of discrimination on the part of KeyCorp, since Boykin's a pro se petitioner, she should be given the benefit of the doubt.  Judge Soto bends over backwards giving Boykin the benefit of the doubt here.  Here we see more "wise Latina"-ism: using more judicial contortions to give the "oppressed" a "fighting chance" to have her case heard.

(c) Ricci v. DeStefano: The famous Connecticut firefighters case.  Really, the most obnoxious thing about this case is how brief the opinion is.  Just one paragraph.  If I wasn't as cynical, I might conclude that the judges here simply didn't want to get involved in this case, knowing that either way it would be appealed to SCOTUS.  But the fact that there's a pattern of wise-Latina-ism, plus the fact that Title VII does not permit racial discrimination as a remedy to avoid a discrimination claim (such as invalidating test scores in a racially motivated manner), gives me reason to discount the otherwise inoffensive reason.

So, based on these reasons, I'm not inclined to believe that she's going to be one of those staid, judicially restrained judges.  Instead I think she really meant it when she said that she thinks her activist decisions are better because she has a better grasp of the experiences associated with membership in the Coalition of the Oppressed.

5. Is she a racist?  I think it would be racist for her to claim that her race gives her an edge over everyone else simply because of her race.  Her "wise Latina" comment comes dangerously close to making this claim.

6. Does her membership in La Raza matter?  I don't think so; like what others have said, it may have started off as a Southwestern liberation front, but nowadays I think it is more of a leftist civil rights group.  Of course, it is amusing to note the double standard: liberals never have to explain away their associations with groups or individuals that, in the past, have been hotbeds of radical extremism (Obama-Ayers, anyone?) - it's only conservatives who must atone for their sins if they were ever a member of, say, a secessionist group.

For Republicans in the Senate the Supreme Court nomination of Sonia Sotomayor is a lesson in the law of unintended consequences and another unfortunate legacy of the mistakes of the Bush administration.

I have occasionally defended some of Bush's well intentioned mistakes, but there's no way to put a happy face on this one, because it is going to put a woman on the highest court in the land who believes that judges should write the laws, that some racial and social groups are more worthy than others, that gun rights aren't really protected in the constitution, that government can seize your property without due process and give it to businesses and that free speech is a privilege granted by government to some and not others.

The problem which faces Republicans in this nomination, is that they will likely find themselves unable to filibuster or oppose Sotomayor with any vehemence because she is hispanic and a woman with a record of flaws which are ideological rather than ethical. Already great pressure is being exerted on GOP senators from party leadership to go easy on Sotomayor to earn some credit with the administration for the future. The fear is that opposition to Sotomayor may cost Republicans hispanic support at a time when they need every new vote they can get and when hispanic Republican politicians are rising on the national stage, increasing hopes for a breakthrough with that constituency.

The irony is that this would not be nearly as much of a problem for the GOP had it not been for a little noted failure of the Bush administration. The seeds of this situation were planted back in 2005 when Sandra Day O'Connor was retiring and Bush floated the names of a number of hispanic judges as potential replacements, including Emilio Garza, Alberto Gonzales and Consuelo Callahan. In each of these cases Democrat Senators told President Bush that he would face a filibuster against the candidate and his response was to back down and look for another nominee who was more acceptable to Democrats. The problem with this morally weak strategy was that it meant that despite his desire to apppoint the first hispanic justice, Bush threw away that opportunity and the chance it provided to score points with hispanic voters and now that opportunity has been handed to the Democrats.

In 2005 Bush should have picked the best qualified of the hispanic candidates -- probably Emilio Garza -- and nominated him and taken his chances with a filibuster. Or he could have nominated the ever-cooperative Alberto Gonzales with the specific expectation that he would be borked for the team. That would have put the Democrats in the position of having to attack and filibuster a hispanic nominee, costing them support in that community and making the administration and the GOP look like they were the ones fighting for the advancement of minorities in government. Even though the nomination might have been blocked the result would have been an enormous boost in popularity with hispanics for the Republicans and a ding on the civil rights record of the Democrats. It's also entirely possible that the Democrats might have been bluffing and would have backed down to avoid seeming hostile to a hispanic nominee.

As in other situations, Bush played politics like an amateur and failed to push what should have been an obvious advantage and the Republican party is still paying the price of that mistake. If Bush had played the situation the right way in 2005 then today Sotomayor would not enjoy the immunity conferred on the first hispanic Supreme Court nominee, the GOP would be stronger overall, and might be able to oppose Sotomayor if their ideological concerns are strong enough. But as a weakened party desperate to be liked, the GOP may very well have to bite the bullet, sacrifice principles again and roll over and accept Sotomayor despite her troubling record. And yes, you can blame Bush for it.

Be sure to study those speeches that she has made in the past in Spanish, especially to those made to hispanic groups, as well as those she has made in English.