Wednesday, June 03, 2009

Taking Sonia Seriously

Last time I posted about Supreme Court nominee Sonia Sotomayor, I ruffled some feathers. That wasn't my intention. I still think that when she said her background would allow her to reach a "better" decision than a white male, she misspoke (I hope). A "different" decision would have made more sense, though it still wouldn't have been the most strictly logical thing anyone has ever said. But it was one line from one speech, with a kernel of truth somewhere in it, and I don't consider it a case against her at all. I tend to have a lot of respect for Supreme Court justices, and that cuts across ideological lines. I thought Roberts and Alito deserved confirmation, given all the facts on the table. The president gets to nominate the justices, that's the rule, and I think reflexively battling every nomination based on affiliation just perpetuates the ugly process and ends up hurting "your" president's picks down the road. (Harriet Miers was a different case, of course; one of the times when Bush truly lived up -- or down -- to his caricature. "Hey, there's a friendly lady down the hall. Why not?" Harry Reid also supported the Miers nomination, which is no great surprise. If Reid were president, satirists wouldn't have time for any other targets.)

In this week's New Yorker, Jeffrey Toobin addresses the Sotomayor nomination in a brief piece, which starts:
In making nominations to the Supreme Court, Presidents care about diversity, which is a relatively new term for an idea that is nearly as old as the Court itself. In the early days of the republic, when regional disputes were the foremost conflict of the era, nominees were generally defined by their home turfs. So Presidents came to honor an informal tradition of preserving a New England seat, a Virginia seat, a Pennsylvania seat, and a New York seat on the Court. In the nineteenth century, as a torrent of European immigrants transformed American society, religious differences took on a new significance, and Presidents used Supreme Court appointments to recognize the new arrivals’ growing power. In 1836, Andrew Jackson made Roger B. Taney the first occupant of what became known as the Catholic seat on the Court, and that tradition carried forward intermittently for more than a century, with Edward White, Joseph McKenna, Pierce Butler, Frank Murphy, and William J. Brennan, Jr., occupying the chair. In 1916, Woodrow Wilson nominated Louis D. Brandeis, establishing the Jewish seat, which later went, with brief overlapping periods, to Benjamin N. Cardozo, Felix Frankfurter, and Abe Fortas.
I think the Supreme Court -- especially compared to the elected branches of government -- is intellectually serious, and that the effort to paint its potential justices into an ideological corner is normally futile. There are enough signs that Sotomayor isn't an easily pigeonholed judge. (Toobin: "...she rejected claims by an abortion-rights group that the Bush Administration had violated the First Amendment by withholding aid from foreign groups that promote abortion.") We'll see if her nomination hearings unearth anything worth giving real pause.



Blogger Kraig Smith said...

I couldn't agree more. Having extensively studied the Supreme Court's first amendment rulings back in grad school, I can honestly say that the Justices are, almost without exception, the anti-politican. They're people, so they have political opinions and varying theories as to the role of the judiciary, but they are very thoughtful individuals who can justify their decisions in sound ways, even if you disagree with the ultimate ruling. And while people like to think they can predict how the Court will rule, the Supremes are often unpredictable in ways which constantly affirm my appreciation for the system. Bottom line is that the process for approving a nominee should simply be to make sure they're qualified. And "qualified" is not as complicated an idea as the pols have made it over the last 20 years. When people vote for a President, most do so knowing full well that they're also voting for Supreme Court nominess with a similar ideology to the presidential candidate. That's not a mandate for Congress to accept whomever the President chooses, but I think it's fair to call it mandate-light, and I believe that no matter what party is in power.

3:37 PM  
Blogger travisneal said...

She's clearly qualified and the proof of it is the vitriol being cast her direction by non-Senators.

The concern I have is the very decision you return to where she discusses freedom of speech and money. She has ruled in a campaign finance reform case that campaign contributions are tantamount to a bribe and not speech. While I would like to see less corporate influence into campaign finance this is not the way to do it because it overreaches and is also ineffective (increased transparency is the optimal solution.)

Given the constraints Obama has to navigate I think she is a fine choice with two reservations: (1) she has shown an unacceptable willingness to take police at their word (Jocks v Tevernier, 2001); and (2) she does not see the SCOTUS as a way to push change, a la Brennan and Marshall.

9:10 PM  
Anonymous Anonymous said...

" she misspoke (I hope)."

At least 4 problems with this.

1) It was a speech. These weren't off-the cuff remarks, which tends to be inartful. She wrote down what she wanted to say, giving her plenty of time to phrase it in exactly the way she wanted.

2) She said the same thing in a 1994 speech. Here's what she said in 2001:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

And here's what she said in 1994:

"I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion."

3) She's stood by her remarks and said she wouldn't change them. She also didn't change them at the time, when given the opportunity to revise them before being published in the Cal Berkley law journal.

4) Despite your hope before, the context of her statement doesn't save it, either.

Here's the context from 1994:

"Justice O’Connor has often been cited as saying that 'a wise old man and a wise old woman reach the same conclusion in dueling cases.' I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes the line to Supreme Court Justice Coyle. I am not so sure that I agree with the statement. First, if Prof. Martha Minnow is correct, there can never be a universal definition of ‘wise.’ Second, I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion."

And here's the context of her 2001 speech, which I think makes the statement seem even worse (note the suggestion that her superior judging skills stem from physiological differences between races and genders):

"Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life. Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society."

7:57 PM  
Anonymous Anonymous said...

Jeez, that ended up being long. Sorry about that.

I should also point out the irony of Obama (and his supporters) arguing that Senators should just rubber stamp nominees based on their resumes.

Obama voted against both Roberts and Alito. And he did so after admitting they were qualified. He did it based solely because he disagreed with their ideology.

Guess who was the first President ever to have voted to filibuster a Supreme Court nominee? It was Barack Obama, and he was trying to filibuster Samuel Alito. (After admitting he was qualified.)

So while I generally agree with you that the Senate's role should be more limited, Obama shouldn't get a free pass if he's unwilling to give one to others.

8:08 PM  
Blogger Kraig Smith said...

"Obama shouldn't get a free pass if he's unwilling to give one to others."

For the sake of brevity I'll only address this one point, not several of the other good ones you make as well.

First, I liked Roberts as a nominee and I disliked what opposition there was to his nomination by Democrats---I want to get that out. On this point I strongly disagreed with Obama. That said, whether or not Obama played politics with the nominations of Roberts and Alito doesn't seem to me to be a good reason to do it in return. You seem to be suggesting that if he did it, so too are the Republicans entitled to do it. Indeed, they are entitled to do it as a very function of politics, but I wholeheartedly reject the argument that Obama's own actions as a Senator empower them to do so. That sounds like old fashioned sour grapes to me...what comes around goes around. It's not unexpected, and I suppose that's the absurd reality no matter what party is in power, but if you believe that deference should be shown to a President's choice for the SC, you should believe that even if the President didn't live up to that belief as a Senator---ESPECIALLY if he didn't live up to that belief as a Senator.

As a broader point, that's a big reason why the GOP is floundering. If the GOP believes, as I do, that the nomination of a SCJ should be treated with a bit more deference and dignity than we've seen over the last 20 years, then there's no better way to LEAD than to be the first to back it up. I'm not saying the Democrats are better in this respect--they're not. But it sure would be impressive if Republicans were the one to sort of break the cycle of unnecessary resistance to qualified nominees. No?

8:24 PM  
Blogger JMW said...

Yeah, to back up what Kraig is saying, the word Obama doesn't appear (I don't think) in the post. I'm not defending him voting against Roberts and Alito -- especially Roberts, because to me he was a lay-up.

You're right about the context not making Sotomayor's statements read any better. The question remains, for me, whether or not those statements, weighed against her career of judgments, should be enough to threaten her confirmation. I don't think so.

9:43 PM  
Blogger travisneal said...

GOP deserves the ability to filibuster the nomination... yea yea yea. That's some heady analysis there. Good job refuting the straw man. Oh you're a stud.

Her judicial record seems the deny the very charge of 'the sentence'. She has consistently shown herself to base decisions upon precedent and the very lack of empathy Newt the Grinch and Limbaugh accuse her. I also point to last year's decision in the wage discrimination case as proof of the value of 'the sentence.'

10:45 PM  
Blogger Matt said...

Kraig Smith:
"That said, whether or not Obama played politics with the nominations of Roberts and Alito doesn't seem to me to be a good reason to do it in return."

You know what? You're right. My suggestion otherwise was wrong. I thought it was silly to oppose Roberts and Alito because their conservative principles were allegedly "out of the mainstream" at a time when Republicans held majorities, and it would be childish to suggest it's ok now just merely because the shoe's on the other foot.

I was trying to suggest that, while I did (and do) think Sotomayor's absolutely qualified, I wouldn't lose any sleep over her opposition because what's good for the goose, etc. But that's juvenile. I shouldn't have said it.

I reserve the right to give Obama a hard time when he talks about the proper role of the Senate. But if I implied that anyone here was being inconsistent, I apologize.

1:27 AM  
Blogger Kraig Smith said...


No apology needed---just a clarification which you provided. I think all the nominees should be properly vetted, and Sotomayor is no exception. She should be asked, directly, about her now infamous quote. I just want the public vetting, sometimes cheered on by the politicians, to take on a more intelligent tone. It's legitimate to bring up this quote, but it's not legitimate to bring it up without the context of her actual decisions. If a judge says something stupid like, "I hate blacks," but then every decision that judge renders suggests they're able to put aside their hate when it comes to decision-making, I think that's pretty important. Extreme example, of course, but when discussing a judge's ideology I'm more concerned with the practical (what they actually do) than the theoretical (what they actually believe). No judge should get a free pass, but there's a wide chasm between free pass and disingenuous criticism for the sake of party politics.

5:25 PM  

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