Will the real Sotomayor stand up?

The first days since the president announced Judge Sonia Sotomayor as his pick for the Supreme Court has clarified some things about the nominee, but left others still unclear. Hopefully the Senate will not succumb to President Obama’s pressure to confirm Sotomayor hastily. Failure to act deliberatively in a matter of such note would constitute a serious disservice to the constitutional responsibility of the Senate and to the American people who will, after all, reap the benefit or suffer the harm from decisions in which she will participate for many years to come.

What is clear is that Sotomayor is well-educated, hard-working and intelligent. These are all laudable – indeed essential – attributes of a prospective high court justice. It has also been made known that she is of Puerto Rican background, has diabetes, grew up in the Bronx, may be a Yankees fan, and has “empathy” – all factors completely irrelevant to consideration of a person to sit on the Supreme Court.

One can also infer that Sotomayor is unusually talkative for a judge, and that she may not think carefully about what she says publicly, at least before saying it. In 2001, she spoke about her own ethnic background as the proper basis on which to base her professional actions. Then, at a public forum in 2005 she opined that the federal appellate bench is where “policy is made.” These last remarks are even more troubling in the context of her accompanying comment that district court judges, by contrast, render decisions based on facts.

Such comments by a prospective Supreme Court justice legitimately demand careful probing and full explanation by the nominee herself. We are entitled to know whether such comments were isolated, off-hand remarks or perhaps merely a poorly-considered attempt at humor. On the other hand, we are equally entitled to know if they instead reflect a judicial viewpoint that would lead Sotomayor to set policy or to implement an agenda, rather than interpret the law; not an inconsequential distinction.

In Sotomayor’s legal opinions during her 18 years on the federal bench, the record is not one that lends itself to easy pigeon-holing; a fact neither unusual for a federal judge nor necessarily bad. If the mix of views reflects a judicial mentality premised on the need for careful consideration of the facts and context of each case, followed by a decision based on the law, this would indicate a positive judicial mindset.

For example, Sotomayor’s 2002 conclusion that an abortion rights group could not challenge the so-called “Mexico City Policy” prohibiting foreign organizations from performing abortions if they received U.S. funds, should sit well with conservatives. In that same year, the judge wrote a dissent in a New York case, in which she concluded that even if a municipal employee engaged in “patently offensive” speech, this fact alone would not allow the city to take adverse actions against them. In a mix of other civil rights cases, Sotomayor’s opinions appear to reflect a balancing of individual rights with government power.

She has shown herself willing to hold private corporations properly liable for violations of civil liberties when those entities are acting on behalf of the government.

Distressingly, however, she appears disposed to give weight to foreign court views when considering rights of US citizens domestically – a judicial blind spot that already infects a number of American justices. She also appears to take a much more restrictive view of the Second Amendment than the current court majority.

Then we come to Sotomayor’s well-known 2008 dismissal of a suit by white firefighters in New Haven, Conn., who challenged a race-neutral test that was subsequently invalidated on racial grounds. Her ruling smacks of reverse discrimination.

Over the next weeks, we must demand a thorough confirmation process that reveals which of these judicial philosophies truly reflect the core of Sotomayor’s beliefs. “Will the real Judge Sotomayor please stand up?”

63 comments Add your comment

jt

June 1st, 2009
7:28 am

Who cares?
The rule of law is dead. One more tyrant will not change anything.
You are fooling yourself if you think otherwise.

bob

June 1st, 2009
7:33 am

Obama wanted to fillibuster Alito, maybe Obama should explain what makes sotomayor a better judge than Alito, other than the richness of her being a Latina woman of course.

George American

June 1st, 2009
7:52 am

Great another northeastern elite! If she were a white man, she’d be getting tacked to the cross.

jt

June 1st, 2009
7:54 am

Matt

June 1st, 2009
7:59 am

Wow Bob, do you know nothing about the judicial branch?

Of course district court judges make decisions based on fact. That’s because the role of the district court itself is to find facts and apply the law to those facts. One of the functions of appellate courts, however, (as you know) is to determine what the law is/should be when the legislature has left the court with vague law (i.e. the legislature hasn’t done its job). Many times, policy is used to determine which of two or more possible interpretations of the law are correct.

The real problem here is the legislators. If they did a better job drafting laws, the Court could spend more time on other things (such as determining their constitutionality) as opposed to attempting to interpret whatever pork laden bill you and your fellow republicans tried to push through.

BigMike

June 1st, 2009
8:14 am

The Law in America has never been about truth, It is and always will be about exposure and money. This modern day judical system makes up laws, and loophole everything. As a Minority in America, this can have positive results if you have positive financial gain.George American, please stop with the victim mentality, the white man has had more priviledge than any man known to mankind, he has not only had free speech, but free reighn to do anything and everything. What America is dealing with now is a country that has said no more! G.A.it’s not just minorities alone, you see white folks who want to live there lives are part of this movement, they are called LIBERALS.

SAR

June 1st, 2009
8:17 am

Wouldn’t it be refreshing to see ALL people be held as accountable for their words and actions, as white males are. Had a fraction of the words that this woman has pubicly stated come from a white male, his career would be dead. Ahh, the smell and taste of a fresh double standard…it must be nice to be able to enjoy them. As a white male I can’t enjoy one; I am held accountable for my words and actions. It must be really cool to be a minority and get to say some things a white male can’t even think of saying and getting by with.

heeldawg

June 1st, 2009
8:18 am

I agree with Mr. Barr that an automatic confirmation of any nominee is something that does not serve the American people well. Due process must be served; Congress needs to question Ms Sotomayor closely about her judicial philosophy. She’ll be helping to interpret laws for decades, hopefully not only on the basis of being a “wise Latina woman” (which is actually to a large degree irrelevant), but instead on the basis of how the Constitution and the body of legal opinion that accompanies it impacts individual cases.

That being said, she’ll be confirmed without much fanfare. No one, Republican or Democrat, is going to risk raising the ire of the voting Hispanic population by engaging in strenuous opposition to Sotomayor’s candidacy–particularly when confirmation, at least from a numerical perspective, is essentially a done deal. It’s just simply not worth using up one’s political capital on a fight whose outcome is already determined.

josef nix

June 1st, 2009
8:24 am

Good analysis here. I’ve been trying to get a handle on Judge Sotomayor and am finding it hard to pigeonhole her. That’s a recommendation as I see it. We need a wild card on the court. At least we know where her presonal prejudices lie.

Turd Ferguson

June 1st, 2009
8:25 am

SAR, you are correct sir! Keep speaking the truth!

The Amazing GodHatesTrash

June 1st, 2009
8:36 am

Urban fire departments have historically been bastions of bigotry, and it looks like the New Haven FD was one of them. The upper echelons of the department are overwhelmingly white.

But aside from that, in the case you are whining about, tests were used to promote that were found to have little to do with the new job.

This is not sound public policy, and does not protect the public, irrespective of the races of the people involved. Sotamyor did her job and threw out the test as a criteria for promotion.

FLAWoodLayer

June 1st, 2009
8:53 am

Ironically I agree with most of Barr’s comments with one big exception. Sotomayor did not say her rulings would be based on her background read the whole speech please. And yes, policy is confirmed or rejected on the appelate level. It is so humorous to listen to conservatives scream about how only the law should be used to determine the law. When has this ever happened in U.S. history? Was the Supreme Court using the “law” when it decided Plessy v. Ferguson or the Korematsu case? Brown v. Board was a part of what people call the most liberal court in our history and liberal= bad word. It seems only white males are able to render verdicts free from bias according to Rush and Newt. I’ll save the history lesson here. This is so funny it makes me laugh. Do a Google search on racial sentencing disparities and you’ll see that black and white defendants who do the same crime with the same criminal background get vastly different sentences. Justice might be blind but not color-blind. Sorry SAR if you feel so discriminated in the US. Like is often said by conservatives, STOP PLAYING THE VICTIM.You are white and a male, I think you will be ok.

Copyleft

June 1st, 2009
8:53 am

It’s unfortunate that Mr. Barr doesn’t seem to know much about the courts system, in that he finds it “troubling” to be told that policy is made at the appellate court level.

Of COURSE policy is made there, Mr. Barr. Determining what governmental actions are and are not in compliance with the requirements of the Constitution is, by definition, “setting policy.” It is also, by definition, what the courts are SUPPOSED to do!

None of this will matter to the hardcore bigots who are determined to hate anyone Obama nominates, of course. But their ignorance can be safely ignored, as usual.

Nan

June 1st, 2009
8:54 am

Based on everything I’ve read about Judge Sotomayor’s actual decisions, she is actually a very cautious person who relies heavily on precedent and existing case law, the antithesis of a so-called “activist” judge.
Her personal politics may not be “conservative,” but her approach to the law is.

The New Haven case revolved around the question of why did the city throw out the test results, not whether or not the test itself was in some way discriminatory. It was a 3-judge panel decision, not just Sotomayor, that upheld the decision of a lower court.

I personally am encouraged by the fact that there are a number of persons on the far left who are also expressing doubts about Sotomayor. I figure anyone who has critics coming at her from both ends of the spectrum, both moonbats and winguts, is actually a pretty middle of the road person who’s not going to do anything extreme in either direction.

I would also urge everyone to take a look at the infamous quotes in context. When you read the entire transcript of the discussions where Sotomayor spoke, there’s absolutely nothing outrageous about any of it. We all need to stop quote-mining and look at the whole package, not just one tiny sound bite.

[...] Bob Barr wonders when the real Sotomayor will stand up. [...]

JamC

June 1st, 2009
9:14 am

Mr. Barr’s analysis of Sotomayor is spot-on. Sotomayor is scary to think about. Unfortunately, she’ll be confirmed by the Senate no matter what the Republicans say or do.

D.e.w.

June 1st, 2009
9:30 am

There is only one reason she was nominated…can you spell Liberal?

Meyer Samet

June 1st, 2009
9:30 am

Dear Bob,

Where you so carefull when it came to Thomas, Scalia or Roberts?

Democritus

June 1st, 2009
9:57 am

I think Maureen Downey’s column addresses the issues which concern you

http://www.ajc.com/services/content/printedition/2009/06/01/learned0601.html

I don’t think there’s anything to worry yourself or your readers with. I suggest that you may need help Ms Downey deal with the problems she has reported. Ms. Sotomayer will do an excellent job; there seems a spark of humanity in her.

CommunistAJC

June 1st, 2009
10:46 am

Try Again, no one is defending the gunman of the murdered baby killer. He should not have been shot and killed.

BUT: are you going to defend his killing of over 60,000 babies?

Copyleft

June 1st, 2009
10:49 am

Commie/Maniac: You mean, performing vital and life-saving medical procedures? Yes, I’ll defend that!

Dr. Tiller was a heroic and contributing member of society. His murderer is nothing short of a right-wing terrorist and religious fanatic, no different from Al Qaeda.

dave

June 1st, 2009
10:52 am

Matt – boy did you miss the point, or maybe you are just trying to change the point. Called “bait and switich” because you can’t address the real issue. But that’s why you are what you are.

SAR

June 1st, 2009
10:57 am

Exactly who benefits from a test being ‘dumbed down’ to allow for a racial balance? If you can’t pass the test you can’t pass the test. End of story. It’s not rocket science folks. Where has social promotion gotten us in the past? She’s a very dangerous woman, very dangerous to freedom. If the test had little to do with the job, why did whites do so well on the test and other races didn’t? Genetics? Ahhh…looks like we need the Belle Curve applied here.

Che was a homicidal maniac

June 1st, 2009
11:00 am

Copyleft, defending a baby killer is pretty sick if you ask me. But then again, anyone with the IQ of a blade of grass can’t be too intelligent to begin with.

Oh retard, the right wingers never flew planes into buildings or suicide bombed innocent people.

The Amazing GodHatesTrash

June 1st, 2009
11:33 am

Barr feels the need to go along with the mob. Since Obama’s election, the rightwingnuts are going more and more beserk, they are buying bullets like they are candies, buying guns like their is no tomorrow. Their use of Atavan and other anti-psychotics is skyrocketing.

Now they are going into churches and killing people. Is there anything these people won’t stoop to do?

Copyleft

June 1st, 2009
11:44 am

Maniac: Yes, they did. Al Qaeda is made up entirely of right-wing religious zealots, no different from the anti-choicers here in America except the church they go to.

Of course, “anti-choice” is too mild a label for them now that they’ve resorted to violence AGAIN. So “domestic terrorists” seems the most apt description of these nuts from here on in.

JustaJew

June 1st, 2009
11:57 am

Oh retard, the right wingers never flew planes into buildings or suicide bombed innocent people.

True, but anyone who hates enough to kill, especially to achieve some political end, is a terrorist. The only difference is order of magnitude.

Che was a homicidal maniac

June 1st, 2009
11:59 am

Copyleft, you’re idiocy and lack of intelligence is astounding. You site one instance of an abortion doctor, a man who murdered over 60,000 babies, who got shot by someone whom no one knows.

Islamic Terrorists killed over 3000 people on 911.

Right Wing conservatives have killed 0.

Again, prove that this gunman was a right winger. You don’t even know who this individual is and yet you paint him a right winger. How do you know it was not a democrat transgendered man/woman?

Che was a homicidal maniac

June 1st, 2009
12:01 pm

JustaJewinnameonly, then that would make cop killers domestic terrorists. That would make Ted Kennedy a domestic terrorist for drowning is girlfriend. That would make Obama Hussein a terrorist for writing bills to abort helpless babies.

Looks like you’re the retard.

Dustin

June 1st, 2009
12:28 pm

Wow Matt you are saying that Mr. Bob tried to push bills full of pork through? Mr. Barr is not even a republican he is a libertarian, please try to know what you are talking about before you type it.

Dustin

June 1st, 2009
12:28 pm

*Mr. Barr lol

JustaJew

June 1st, 2009
12:32 pm

Wrong, Che. cops don’t kill unless they have to as part of their job, not motivated by hate, Ted’s a drunkard and negligent, not motivated by hate, Obama hasn’t written one bill regarding abortion, again, not motivated by hate.

Come back when you have better examples…like Matthew Shepard, killed because of hate, Marcelo Lucero, killed because of hate, the 3000+ men and women in the twin towers, killed because of hate, of course there’s also Barnet Slepian,John Britton and David Gunn, all health-care providers killed because of hate….

SaveOurRepublic

June 1st, 2009
12:33 pm

In addition to her many “Leftist” rulings, being a member of La Raza, Sotomayor also made a statement that the right of Americans to bear arms should have ceased (upon passage of the 2nd Amendment). She appears to be Constitutionally inconsistent (at best) & a Marxist oligarch (at worst).

SAR

June 1st, 2009
12:51 pm

What’s fair about people attending the same schools, taking the same classes and doing the same homework assignments yet one group needs a watered down-dumbed down version of the same test to be able to compete and the reward is that the group taking the dumbed down version will be promoted? Huh? Her rulings on the right to bare arms is very much in line with the idiots running crime ridden Atlanta. Law abidding citizens shouldn’t bare arms but the crooks can have them. She is a fine example of a typical minority democrat, you only have to look just so far to see how well the democrats have ran crime infested Atlanta. I’m sure Queen Shirley just loves this woman. My gut feeling is that this loose cannon will open her mouth before this is all over and she’ll be sent back to the South Bronx where she belongs. Why have so many of her rulings been overturned by the very court she wants to sit on? It’s because she knows nothing of the Constitution. This woman should be doing a daytime court television show.

Whipkey

June 1st, 2009
1:07 pm

If a few off hand (and out of context) remarks and one questionable case is all that you have, then you don’t really have anything. Clarence Thomas got confirmed with a sexual harrassment claim. They’ll ask her the questions, she’ll give a prepared response and we’ll go back to not caring about the supreme court.

JustaJew

June 1st, 2009
1:10 pm

Her rulings on the right to bare arms is very much in line with the idiots running crime ridden Atlanta

I’m glad I have the right to bare arms and the right to bear (the animal and “to keep, hold”) arms. You see, I deny myself no right when it comes to arms…

JustaJew

June 1st, 2009
1:14 pm

SAR, your a moron. As just about every rationally thinking person on this blog has explained, the Supreme Court DOESN’T ACCEPT cases that they APPROVE of. They ONLY ACCEPT CASES that ARE LIKELY TO BE OVERTURNED. Sotomayor has rendered 380 CASES. Of those cases 5 have been heard by the Supreme Court with three being overturned. That means the Supreme Court AGREES WITH 377 OF HER OPINIONS and DISAGREES WITH 3 OF THEM. Seems like her rulings are pretty constitutionally sound to me, regardless of her political and personal viewpoints.

Nan

June 1st, 2009
1:32 pm

Che – you say the right has never bombed buildings or killed innocents? Obviously you don’t remember Tim McVeigh.

RetLTC

June 1st, 2009
1:52 pm

JustaJew, don’t forget Alan Berg.

JustaJew

June 1st, 2009
2:11 pm

Sorry Ret, was just trying to show Che that he’s totally off-base with his argument. There are quite a few names left off the list but I think Che knows how wrong he is. No disrespect to the people I left out…

Bemused

June 1st, 2009
2:19 pm

Mr Barr – It depresses and worries me a bit to know this is the level of discourse your blog posts elicit. I hope (and simultaneously fear) that this is more an indication of the general population’s intelligence, than that of your audience in particular. :-/

The REAL GodHatesTrash

June 1st, 2009
2:50 pm

For jobs in the public sector, it is against the law for employers (in this case the City of New Haven) to use tests and/or other criteria that are not correlated to job duties and performance for hiring or promotion. For example, it is OK to say that a city attorney has to have a law degree and have passed the state bar, but it would not be a fair criterion to require him/her to lift 45 lbs.

The test the city was using was examined by professional experts in the field of testing and evaluation, and they found that this test did not correlate to the job duties of officers in the City of New Haven fire department. Essentially, their investigation said that filling in boxes on a test form does not a fire captain make.

Sorry, rightwingnuts, but Sotomayor was doing her job, following the law, and making sure it was fairly applied.

Perhaps the reason none of you are getting ahead in life is not because of imaginary reverse racism, but that you are just not qualified and too darn lazy?

(Maybe you should marry a doctor, get her to prescribe you some heavy duty anti-psychotics, and be a house-husband…)

SAR

June 1st, 2009
3:28 pm

Justajew….this moron knows the difference between you’re and your. Just as I know the difference between being qualified and not qualified. Seems like Obama was predicating his choice on being non-white, radical, left-of-center and rather unattractive. I do admit she qualifies on all those points. I’m sure she had a wonderful reception out in Berkley giving her I Hate White Males speech to a room full of hairy women who need a chromosome test to determine which box to check, male or female.

SAR

June 1st, 2009
3:32 pm

So…(un)real God hates…what you are saying is that it’s unfair to test non-whites and expect them to do well? That’s how I read your explanation. Again,it must be genetics….sweet.

The AMAZING GodHatesTrash, Superstar

June 1st, 2009
3:56 pm

SAR, while many a middle-school student can grasp the issues of the New Haven case, I am certainly not surprised at your difficulty with the concepts behind the laws involved.

You’ve self-identified as a moron in your previous post, which is a beginning. The next thing for you to do to continue on your long, difficult journey towards self-improvement would be to shut your mouth, and open your ears as your betters tell you what is going on.

Che was a homicidal maniac

June 1st, 2009
5:07 pm

JustaJewinnameonly, are you that retarded? You obviously can not read. I said that PEOPLE WHO KILL COPS SHOULD BE LABELED TERRORISTS IF THEY KILL COPS. HATE MY FRIEND, HATE.

Matthew Shepherd was not killed by right wing Christians. He was killed by rednecks. You libs really have a hard time distinguishing between right wing and terrorists.

Libs like you defend people like Bin Laden and baby killers.

Che was a homicidal maniac

June 1st, 2009
5:10 pm

Nan, I don’t remember Tim McVeigh belonging to any church or church related organizations.

FACT: THE UNIBOMBER READ AL GORES BOOK AND WENT OUT AND BOMBED INNOCENT PEOPLE.

FACT: LEE HARVEY OSWALD HAD A COPY OF THE COMMUNIST MANIFESTO WHEN HE MURDERED JFK.

PONDER THAT FOR A WHILE.

Che was a homicidal maniac

June 1st, 2009
5:11 pm

JustaJewInNameOnly, you may want to use correct grammar when name calling. Moron.

Cheney IS a homicidal maniac

June 1st, 2009
8:45 pm

The morons and maniacs in the GOP think he is God.

Michael H. Smith

June 1st, 2009
9:29 pm

Those who opposed using the (New haven test) results said they worried “the test must be flawed” in some way that disadvantaged minorities. Have the New Haven test questions now in contention been published?

Is it true government lawyers warned the independent civil service board that if it certified the test results, minority firefighters might have a good case for claiming discrimination under Title VII of the Civil Rights Act of 1964 and Federal guidelines presume discrimination when a test has such a disparate impact on minorities?

District Judge Janet Bond Arterton dismissed their suit before it went to trial. She said in her 47-page decision that the city was justified under the law in junking the test, “even if it could not explain its flaws”.

The assertion is the New Haven test flaws must discriminate, yet, no one can explain the flaws and the decision says: So what if these purported flaws cannot be explained the city is justified under the law?

Would that empathy be the law of identity politics?

Judge José A. Cabranes was right in urging the Supreme Court to review the New Haven case. Clearly Judge Sonia Sotomayor was wrong in affirming the decision of a lower district judge.

“Tomorrow’s headlines Today, news flash for the lousy loathsome liberals.

Cheney tortures liberals openly supports gay marriage:
Lord Dick “Darth Vader” Cheney endorsed Gay marriage throughout the Empire.