Sotomayor nomination: No smoking gun


  Some commentary has a longer shelf life than others.  An earlier posting lasted minutes before President Barack Obama announced the appointment of Judge Sonia Sotomayor to fill the David Souter vacancy on the U.S. Supreme Court.

 She’ll attract considerable debate, largely because of a speech she made in 2001 where she seemed to express the opinion that a Latina woman and a white man would reach different conclusions when ruling on the law.  Said she:  

   “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  She was speaking at a University of California diversity lecture.

She will also draw fire because of a statement she made in 2005 that the U.S. Court of Appeals, where she served, “is where policy is made.”  Those are the words of an activist judge.

A fuller reading of her diversity remarks leaves her thoughts open to interpretation.  I don’t think there’s a smoking gun there.  It’s not enough to evoke a filibuster.  

Initial reaction here is that, barring something else, she’ll be confirmed without filibuster. 

119 comments Add your comment


May 27th, 2009
9:44 am

How does a judge making a decision relative to case law “make policy?”
Our system is one of interpretation of the laws written because someone the law affected felt aggrieved and took issue with the consequences.

The judge has the responsibility to agree/disagree with the law as written; the legislative branch, House or Senate, has responsibility for writing those laws.

What activist judges??????


May 27th, 2009
10:24 am

sane jane:

Please go back up and read my initial post @ 3:34, then go to the previous thread “Any standard-issue liberal for the court…” and read my comment there @ 9:19.

Sotomayor has ruled in favor of Wall Street, pro-lifers, the government on warrantless wiretapping, and against environmentalists. What’s not to like.

I’ll even give her a pass on the “where policy is made” statement. Precedence would have been a better choice of words but then it’s obvious that she’s not prone to elaboration.

It’s her support of identity politics that concerns me. I predict that her ruling on Ricci v DeStafano will be overturned by the SC and will receive a lot of attention that dems will wish it hadn’t. I also predict that identity politics as it pertains to race will die a slow death over the next 10 to 15 years. When resources are limited, a species will begin to devour their own.

Clarence Thomas’s early plight was every bit as admirable as Sotomayor’s. He attended Yale Law School but because he’s conservative and you’re not….”Uncle Tom’s” accomplishments are suspect?

FC Crusher

May 27th, 2009
10:59 am

It seems to me that part of the problem is the definition of the word “policy” being tossed about here. “Policy” or a “policy argument” in the law is a legal term of art that speaks of how the interpretation of a particular law or previous court ruling will be be carried out int he future and whether the effects of that will have positive or negative effects on the citizenry. It DOES NOT mean the same thing as a “political policy”. Every jurist, from the Superior Court to the SCOTUS has to take into account these considerations when making a decision. To say that the courts are where “policy” is made is no political statement. Its a statement of reality.

Oh BTW, if you don’t know what a term of art is and how every profession and industry has them, then perhaps you need to read a little more.


May 27th, 2009
11:23 am

Ain’t it amazing? Right wingnuts who barely got out of grade school are questioning a court nominee’s intelligence, and she is the one who went to Princeton and Yale? (Now, I admit that one George Bush also went to Yale, though with a disastrous grade point average, earned by a paid grad student no doubt, hurts my case.) I look forward to the Republican Party gearing up and strapping it on and taking on a female hispanic. This will be great for the Democratic Party. Before it is done the Republican Party will be the equivalent of a Boy Scout troop in Keokuk, Iowa. And Limbaugh and Hannity and Coulter will still be in the public square setting their hair on fire. God, this is fun.


May 27th, 2009
11:33 am

@@: “Clarence Thomas’s early plight was every bit as admirable as Sotomayor’s. He attended Yale Law School but because he’s conservative and you’re not….”Uncle Tom’s” accomplishments are suspect?”

Yes, Clarence Thomas’ accomplishments ARE suspect; what you fail to grasp is that Clarence Thomas was only rated “QUALIFIED” by the American Bar Association, whereas the preponderance of his predecessors – partucularly Thurgood Marshall, the Justice he replaced -were rated “HIGHLY QUALIFIED” by the same agency. Clarence Thomas also wants to repeal the same programs for other minorities that got him to his crescendo. He was chosen by Bush41 as an appeasement; Mme. Sotomayor was chosen by her experience in juris prudence. If you compare the two vitaes, I feel that Justice Thomas falls woefully short!!

FC Crusher

May 27th, 2009
11:43 am

Careful HDB. You came close to revealing the librul ABA’s plot to join with the “Mainstream Media” to keep the poor put upon GOP and their members down. Remember, a conspiracy is only as strong as its weakest link.


May 27th, 2009
12:16 pm

@@: More hypocrisy on your part. You sneer at those who question Thomas’ qualifications and intelligence, and yet you sling those same attacks at Sotomayor, who is factually FAR more qualified and has an even BETTER educational record.

Just admit you hate her because Obama said her name out loud. It’ll save time.


May 27th, 2009
2:51 pm

Copyleft @ 11:07 (5/26) – My initial estimation is that she’s most likely a Cultural Marxist oligarch who’ll not embrace full Constitutional adherence….however, that hunch is yet to be fully validated (in the way of her SCOTUS rulings, etc.). BTW, I’m not in the business of “cut & paste” posts, nor am I a Neocon’d GOP “Bushbot”…but an Independent paleoconservative Constitutionalist.


May 27th, 2009
3:11 pm

What can one say about an SC nominee as blatantly “empathetic” as this one?

“Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.


When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”

That Sam Alito is such a Dirty Fu(|6ing Hippie.

Andre "Pulpwood" Smith

May 27th, 2009
5:34 pm

Funny how the right is clinging to the tired old “identity politics” argument to attack this nomination. When a Democrat nominates a female, it’s “identity politics,she’s only nominated because she’s a woman or latin, not the most qualified, it’s racist” etc, etc, etc.

Consider this quote:

“Within the guidelines of excellence, appointments can carry enormous symbolic significance. This permits us to guide by example, to show how deep our commitment is and to give meaning to what we profess.

One way I intend to live up to that commitment is to appoint a woman to the Supreme Court.

I am announcing today that one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can find, one who meets the high standards I will demand for all my appointments.

It is time for a woman to sit among our highest jurists. I will also seek out women to appoint to other federal courts in an effort to bring about a better balance on the federal bench.”

Who said it? Some bleeding heart liberal? A (gasp) socialist? Nope, it’s the hero of the right, Ronald Reagan, October 14, 1980.


May 27th, 2009
6:03 pm

“Pulpwood” – Reagan is only a hero to the GOP. From a pure, true (paleo)conservative perspective his terms as POTUS were questionable at best (amnesty for illegals via the ‘86 Immigration Reform and Control Act signing, hawkish on foreign entanglements & green-lighted REX 84).

For us real (paleo) conservatives, our heros are Founding Fathers such as Jefferson, Samuel Adams & Patrick Henry (& rare modern patriots like Dr.Ron Paul).


May 27th, 2009
7:23 pm

Another d@mned hippie caterwauling about “empathy”:

Republican Senator John Danforth on Clarence Thomas on July 16, 1991: “His empathy is with the disadvantaged people of this country. He would bring a perspective to the Supreme Court which nobody else brings.”

Fu(|3ing Hippie.


May 27th, 2009
8:05 pm

“I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.” “She was speaking at a University of California diversity lecture.”

The very fact that she was at a University of California ‘diversity’ lecture should disqualify her in the minds of every straight, white, protestant male in America.

But it wont. The communist media will hide any relevant information about this woman until her big butt is firmly planted on the Supreme Court…

… for the rest of her life.


May 29th, 2009
1:56 am

Of course, the Republicans removed this Wise Latina statement from the several hundred words that preceded it and the several hundred that followed it. And of course, they totally reversed the meaning of the statement:

[O]ne of my former colleagues on the Southern District bench, Judge Miriam Cederbaum….rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then “as not capable of reasoning or thinking logically” but instead of “acting intuitively.”…

Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with…Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases…. whether by ignoring our differences as women or men of color we do a disservice both to the law and society…. I accept the thesis of… Professor Steven Carter of Yale Law School…that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought….

[B]ecause I accept the proposition that, as [Yale Law School Professor Judith] Resnik describes it, “to judge is an exercise of power” and because as… Professor Martha Minnow of Harvard Law School states “there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging,” I further accept that our experiences as women and people of color affect our decisions. 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….

Whether born from experience or inherent physiological or cultural differences…our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] 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….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. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group…. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown [v. Board of Education.]

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

One must accept a single thing from these conservative distortions and outright prevarications. That these make them singularly unqualified to serve on any court in any place at anytime.


May 29th, 2009
2:17 am

No actually the right wing has been flooding the media with false impressions by their usual methods of misrepresentation.

The “wise latina” statment comes from the middle of a huge paragraph in which she points disagrees with a statement made by Sandra Day O’Connor in which she states a “wise old man and a wise old woman will ALWAYS reach the same decision” Sotomayor states that this is not the case, and gives examples of when they do, and when they dont.

Next, the Republicans make statements about how many times the Supreme Court has reversed Sotomayors decisions, but fail to rate that it has been the LOWER than the average annual rate of reversals for all the appeal courts over the last 11 years. The average rate is 75 percent, and Sotomayors lifetime rate for her time on the appellate court is 60 percent.

What can you express from the political party that chose the prince of darkness as their last vice president.


May 29th, 2009
2:24 am

She will be confirmed for two reasons. One is that the rate at which the Supreme Court has reversed her decisions in the last 11 years is one of the lowest rates for that 11 years out of all the appeals courts. Her average rate of the cases the court has decided to accept is 60 percent. The average for ALL federal appeals courts over the same period is 75 percent. The average rate of reversal for ALL her cases sent to the Supreme Court is 1.3 percent. The lowest in the last 100 years.

Next even now, she has MORE judicial experience than Chief Justice Roberts OR Justice Alito if you INCLUDE their years on the Supreme Court. She is the most experienced judicial nominee in the last 70 years. If she is confirmed she will be the ONLY person sitting on the court who has served in EVERY level of the judiciary in the country.


May 29th, 2009
2:25 am

In fact she has the more judicial experience than any Conservative appointed to the court did at the time of their appointments since BEFORE Renquist was appointed.


May 29th, 2009
2:29 am

How does a judge MAKE policy. They make it every time they hand down a decision. When the president decides he is going to hold some types of people in Guantanamo and thats his policy, and the court says NO you have to bring them into the United States and hold a trial,because the way you are doing it is unconstitutional, that is making policy. The policy then becomes when you have a prisoner of that type you have to jail them in the United States and try them in a civil court and not by military tribunal. You have to do that from now until another court changes that decision. Thats making policy


June 1st, 2009
2:42 pm

To “Get Real”
I guess you have a problem with reading aboe a third grade levell…Your comments make no sense otherwise…Mr. Wooten is essentially saying that Judge Sotomayer should be confirmed.