It was as if she’d come straight out of casting call. Approximately two seconds after President Obama’s announcement of Judge Sonia Sotomayor’s appointment, her past statements torrented out, immediately reflecting upon her as a down-the-line judicial activist. The most bombastic statement is being repeated all across the conservative media: “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.“
The bait was cast. All over, commentators became victims. Glenn Beck and Rush Limbaugh immediately decried her as a “racist.” Sean Hannity complained about “reverse discrimination.”
And then comes the switch. All of a sudden, an argument that should be a golden opportunity for conservatives becomes completely unwinnable: Is Sonia Sotomayor a racist? Do white men face discrimination from the courts? Who exactly is going to buy that? As much as Sotomayor’s statements are objectionable — and her judicial philosophy is obviously utter anathema to originalism — could there possibly be a stupider way to rally Americans against her nomination than on the grounds of anti-white racism? (Clarence Thomas himself, in fact, once noted that his experiences gave him a unique perspective worthy of bringing to the court.)
Sotomayor’s nomination is a unique opportunity for the conservative movement to rally all of its factions together — including centrists who are wary of the court overstepping its constitutional authority. It would be shamefully regretful for us to squander this moment by ignoring the real issue at hand. We have a clear choice: we can use this nomination to rally Americans to the Republican Party — or we can use it to cast white men as a grievance lobby.
If conservatives believe in racial equality on all levels, we should let her statements speak for themselves, rather than take the victimer-than-thou route. The fight is not over race — it is over the Constitution. Let’s keep our eye on the ball.
31 responses so far
1 // May 26, 2009 at 10:17 pm
Knepper said: “As much as Sotomayor’s statements are objectionable — and her judicial philosophy is obviously utter anathema to originalism . . . “
Was Clarence Thomas’ comparable statment that you cite equally objectionable? The statements by Sotomayor and Thomas are substantively the same, yet only Sotomayor’s is objectionable? Your hypocrisy is amazing!
As for Sotomayor’s “judicial philosophy,” can you please cite any opinions of hers that would render her unfit for the SC?
Without those you should probably refrain from weighing in on this subject until you’re better prepared.
2 AlexK // May 26, 2009 at 10:23 pm
No, I find both objectionable. It has nothing to do with the judiciary and should not even be a consideration.
Hence the title of the article.
Yes, I can cite a case: one in which she tried to overturn a school district’s decision to move a black child from the 1st grade to kindergarten because it was ‘discriminatory’ to him as the only black boy in the class. Her decision was later overturned by the Supreme Court. Of her six cases that have made it to the Supreme Court, all of them were overturned except one — and that one was upheld on different grounds than those used by Sotomayor.
All nominees should be viewed with suspicion due to Obama’s criteria, but Sotomayor’s record seems rather uncompelling on its own merits.
3 mlindroo // May 26, 2009 at 10:34 pm
> Glenn Beck and Rush Limbaugh immediately
> decried her as a “racist.” Sean Hannity
> complained about “reverse discrimination.”
> And then comes the switch. All of a sudden, an
> argument that should be a golden opportunity for
> conservatives becomes completely unwinnable:
> “Is Sonia Sotomayor a racist? Do white men face
> discrimination from the courts?”
Excellent argument from Alex Knepper! By all means, argue that Sotomayor’s “judicial philosophy” is wrong if you want. But the argument that white men face blatant racial discrimination on the Supreme Court is just absurd. Before Souter’s retirement, seven SC justices out of nine were white males after all.
MARCU$
4 AlexK // May 26, 2009 at 11:11 pm
Another awful ruling: http://volokh.com/posts/1243364120.shtml
5 // May 26, 2009 at 11:21 pm
AlexK:
I appreciate your intellectual consistency in criticizing the statements of both, and I apologize for calling you a hypocrite. I was clearly wrong.
As for the merit of both Sotomayor’s and Thomas statements, however, you are misguided. Interpreting the law and applying it to the facts of a case will necessarily be influenced by the personal experiences and views of the individual justicies, and race and gender are major contributors to those experiences and views. Their life experiences shape their understanding of the legislature’s intent when drafting the law.
If the law was always as unambiguous as many conservatives would have us believe, there would be no need to have more than one justice. We could simply allow a single person to interpret it and there would never be any basis for a divergent view.
Of course, the founding fathers knew this wasn’t the case and that is why they created a court that called for more than just one justice. If they didn’t think multiple perspectives were critical in deciding a case they would have created a court of one.
6 AlexK // May 26, 2009 at 11:33 pm
The law isn’t very ambiguous; there are just people out there who would like to tailor it to their own agendas. I am both gay and atheist; that doesn’t mean that I think that gay marriage is mandated by the California Constitution (it’s not; you’ll never see me outside a courtroom chanting “Shame on you!”) or that the founders demanded an unapologetically secular state (they did not). To me, it’s a matter of intellectual honesty. I am personally insulted, as a member of a minority group, at the contention that we are unable to separate our legal analysis from our “experiences,” whatever those are supposed to be.
The law is not supposed to be ambiguous. The Constitution was never meant to be a cryptic document. It was supposed to be written so that even the common man could comprehend it. No highfalutin legal theories can change what the Founders meant. If you want to know what a clause means, you read it. If you’re not sure, you go to the Federalist Papers or to the text of the debates at the Constitutional Convention.
Lower courts are there for case law and for cases that would inevitably arise, but there are some circumstances that have been clearly political and rationalized away in hindsight — To take some famous ones: Kelo v. New London. Roe v. Wade. Miranda v. Arizona. Griswald v. Connecticut. This isn’t to say that what they made legal was or was not good — it’s a matter of the courts knowing their place. I am pro-choice, but anti-Roe v. Wade. It’s a matter of intellectual honesty. The courts are supposed to be an apolitical branch.
7 // May 26, 2009 at 11:34 pm
AlexK:
Sotomayor has ruled on more than 300 cases and she’s had 6 of them overturned. The very fact that only 6 of them went to the SC is evidence that the other 294 were likely correct.
As for the case you linked to, you don’t even have the entire opinion. Instead, you have only a small except and an opinion about the case by a partisan. And even that partisan’s opinion concedes that Sotomayor’s panel was following the guidance by the Supreme Court.
It’s her job to follow the law as determined by the SC – not to render a different decision when she thinks the SC got it wrong. So your own case is proof that she is NOT an activist judge.
As for the other case regarding the black 1st grader, you did not provide a link nor a case name so I can’t comment on that case, but based on your comment about the property case, I’m not prepared to conclude that you have a clear understanding of her ruling.
8 // May 26, 2009 at 11:40 pm
Of course the law is not supposed to be ambiguous, but it sometimes is. When that happens different judges will have different opinions on what was intended. That is why there are so many split decisions on courts at all levels and in cases of all types.
This should not come as a surprise to anyone who weighs in on this subject.
9 AlexK // May 26, 2009 at 11:41 pm
- Nonsense. The Supreme Court only takes on a select few cases — ones that are controversial or have something substantive to add to the body of the law.
- The intent of the law matters. “Public usage” means: roads, schools, plumbing. It does not mean commerce. Whether you think commerce would be a nice thing to be added to such a definition is a matter for the legislature to take up, not for the courts to tack on.
- Here’s the link to where I found the other cases: http://www.foxnews.com/politics/2009/05/26/sotomayors-judicial-record-battlefield-critics-advocates/
10 AlexK // May 26, 2009 at 11:45 pm
But the law is not ambiguous on certain matters that the legal left likes to pretend it is. The law clearly does not state that there is a right to privacy. If there were a right to privacy, it would be in the Constitution. It’s not in the Constitution. It really is that simple a question. Is it in the document or isn’t it? (The popular reasoning is rather spurious: the very fact that particular points of privacy — quartering of soldiers, right of association — are bulleted in the Constitution should seem to suggest, in fact, that there is NOT such a right in the document; no enumerated right sees such particulars in the rest of the document.)
That does not resolve the question: SHOULD there be a right to privacy? I think that there should be, myself. But that’s a question for the LEGISLATURE.
11 Jack Bauer // May 27, 2009 at 4:02 am
“Is Sonia Sotomayor a racist? Do white men face discrimination from the courts?”
Are you serious? That’s your considered response to a scandalous SCOTUS nominee who has openly displayed bigotry from the bench?
Sure, let’s follow your advice. Let her statements speak for themselves.
You’ll have the next 30+ years to listen to them rattling around your head while Red Sonja delivers incoherent, intellectually lightweight, arrogant, and close-minded rulings.
Oh, and makes law and policy from the bench. Feel better now Alex?
12 Bulldoglover100 // May 27, 2009 at 5:00 am
LOL Not going to happen. The GOP is too busy running off a 28% voting block in this country.
Again the Dems set us up and again we fall on the sword while screaming to a small uneducated group base.
13 Bulldoglover100 // May 27, 2009 at 5:04 am
Jack “Trust me your not Jack” Bauer…… good luck with that argument…more spittle leaking from the pie hole of a far right winger who just keeps hurting our party with uneducated thoughts that go no where. Fantasy world Jack here thinks that screaming his midnight fears will help..and all it does is run off a 28% voting block with anger based at his own interpretation of things said…..
Education is the key and for those who have uneducated opinions, stop hurting our party.
14 ottovbvs // May 27, 2009 at 5:35 am
This is a brilliant nomination both from a legal standpoint, she’s highly qualified and well within judicial 40 yard line, and just as brilliant politically. While picking a justice with sound legal credentials and a great personal story he at the same time squeezes his opposition. Do Republicans really want to go to the stake fighting motherhood and apple pie. The activists clearly do while the professional politicians clearly don’t. It will be interesting to see which side wins out although her confirmation is actually a shoo in.
15 sinz54 // May 27, 2009 at 6:27 am
ottovbs: Which *conservatives* currently on the Court do YOU consider to be “well within judicial 40 yard line”?
Remember the fight that the liberal wing of the Dem Party put up against Roberts, who was never an ideologue. Obama voted against Roberts, remember? And he did so DESPITE acknowledging Roberts’ legal skills and talent, on the basis that Robert was too white for him and not liberal enough for him.
We should remind the public of that. That liberals like Obama and yourself are trying to define the “judicial 40 yard line” to exclude all conservatives.
16 sinz54 // May 27, 2009 at 6:33 am
Spartacus: The Ricci v. DeStefano case was a beautiful example of the disaster that affirmative action has become. White firemen who spent their own savings and worked on their own time to pass an exam for promotion were denied promotion, solely on the grounds that not enough minority firefighters passed the exam. A firefighter, DeStefano, sued. The 2nd Circuit Court, on which Sotomayor sat at the time, rejected his petition.
Affirmative action has gone from attempts to give more opportunities to minorities, into a club to knock down others so that they FAIL at the same rate as minorities.
That is unacceptable to me, and I think we conservatives should make that case to the public: Instead of striving to achieve excellence in everyone, liberals like Sotomayor are willing to except equal failure, just so long as it’s equal.
17 sinz54 // May 27, 2009 at 6:35 am
Spartacus sez: “When that happens different judges will have different opinions on what was intended. “
That’s fine, as long as those opinions are NOT based on race. We’ve spend 200 years to try to get away from that, remember?
If I go before the Supreme Court with a petition, I want Judge Sotomayor to see me as a petitioner asking her to judge my case on the merits. NOT as a white guy begging favors from a Latina.
SC Judge Roberts (who I remind you was opposed by Obama because he wasn’t “empathetic” enough) put it plainly:
“The way to stop discrimination on the basis of race, is to STOP discrimination on the basis of race.”
18 ottovbvs // May 27, 2009 at 6:50 am
sinz54
wrote 7 minutes agoottovbs: Which *conservatives* currently on the Court do YOU consider to be “well within judicial 40 yard line”?
…….Roberts, Alito and Kennedy are all within the conservative 40 yard line, undeniably conservative but not not to the exclusion of sound legal jurisprudence. Scalia and Thomas are over it; overt legal partisans essentially attempting to impose their conservative agenda on the country even when it offends precedent and natural justice. When it comes to the Democrats they are all basically within the liberal 40 yard line as is Sotomayor which is the beauty of Obama’s pick, she’s totally mainstream. As for the New Haven fireman’s case, where the emotionalism of your description says a lot, the entire panel of three judges on the second circuit refused to hear their case, it was unanimous and they did it on the basis of the law. In other words the reverse of activism. As it happens, it seems to me these firefighters had a case based on natural justice and commonsense, but that’s activism. You can’t have it both ways. It’s not very different in its way from the eminent domain case also in CT where several liberal supremes voted to uphold the rights of the city of New London. It offended natural justice but they had the law on their side. The problem with too many conservatives is they rail against judicial activism but applaud it when it works in their favor.
19 sinz54 // May 27, 2009 at 8:39 am
Can you cite the reasoning in the New Haven fireman’s case?
I heard that Sotomayor and the other two judges just let the ruling stand without much comment.
20 sinz54 // May 27, 2009 at 9:34 am
ottovbvs: Obama voted against Roberts. Since Roberts is arguably the least ideological of the four conservatives, there seems little doubt that Obama would have voted against the other three as well.
In these upcoming hearings on Sotomayor, I think it would be a good teaching moment to explain to the American public not just the significance of Sotomayor’s philosophy, but Obama’s:
“The Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasnt that radical. It didnt break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states cant do to you. Says what the Federal government cant do to you, but doesnt say what the Federal government or State government must do on your behalf, and that hasnt shifted.”
— Barack Obama, 2001 (he was careful never to say that again in 2008)
21 Jack Bauer // May 27, 2009 at 10:06 am
BULL — really, should a guy who voluntarily chooses BULL as his pen-name be making fun of anyone else?
As you make erroneous assumptions in your spittle drooling diatribe, I shall return the compliment
I am interested in which party is it you belong to? The Democrat pretending to be a Republican party?
Liberals always have an over-inflated sense of their own education, so it is telling that you can’t help bringing “education” into your farrago of empty nonsense that spews from your tedious “pie hole.”
Creepy sanctimony, another giveaway for the lying liberal.
Why so much invective against a conservative who merely points out the beams in Red Sonja’s eye. This is a conservative web-site, is it not. Conservatives of all stripes do have some fixed principles, do they not?
But I get the impression that you hate conservatives with a vengeance?
Okay — I’ll give you the benefit of the doubt. Tell me where I am going wrong in my, hardly original, assessment of the flaws of Sotomayor’s suitability as SC Justice.
Throw in which of Obama’s “great” ideas you oppose?
And please, do give us YOUR game plan for opposing the scandalous choice for SCOTUS.
Oh yeah let me assume — too busy drooling over your keyboard — gotta get dem right-wingers.
That’s the problem here — not Colin “I voted For Obama” Powell. Not John “Maverick, Dont Blame Me It Was All That Alaska Bitchs Fault” McCain. Not Tom “Well I don’t Actually Have Any Ideas But I Do Hate Rush So That Qualifies Me To Lead Republicans” Ridge.
I hear there’s a position on Arlen Specter staff — go for it, you sound perfect.
22 // May 27, 2009 at 10:10 am
Sinz: The appellate court on which Sotomayor sits ruled unanimously in favor of the tossing out the test. That ruling does not necessarily reflect their judgment on whether affirmative action is a good thing or a bad thing. Instead, it reflects their reading of SC case law on this issue, which is not unanimous. So, again, it’s quite a stretch to say the Ricci case shows racial prejudice or judicial activism by Sotomayor.
As for the merit of affirmative action, I have no problem in evaluating it to see if it’s still necessary or appropriate. The problem I have with conservatives, however, is that they have opposed affirmative action from its very inception even though they were absent, or lackluster at best, in opposing the hundreds of years of racial discrimination that affirmative action was/is intended to address. For this reason, I and many others have difficulty distinguishing conservatives’ reasoned, substantive critiques of affirmative action from their disingenuous attacks that flow from, at best, an indifference to the racial wrongs that have occurred.
23 Jack Bauer // May 27, 2009 at 10:23 am
Spartacus — you have a lot of problems with lots of people.
Here’s an idea. Tell us why conservatives should support Sotomayor.
Please, I would LOVE to know why you think that conservatives should be happy with this nominee.
Of course, to do that, you would have to actually know a few conservatives.
Tell me, are some of your best friends conservative?
24 // May 27, 2009 at 10:34 am
Jack Bauer: I never said conservatives should support her, and I don’t know where you got that from. Maybe you’ve been waterboarded a little too much.
I have no problem with conservatives opposing her if they think she’s too conservative. I would only ask that (1) they acknowledge their opposition is ENTIRELY political, and (2) if they claim she’s too liberal they should point out some of her actual rulings that demonstrate that. You’re more than welcome to, although probably not capable, of trying to do this.
25 // May 27, 2009 at 10:37 am
Jack Bauer: In my last post I meant to say I have no problem with conservatives opposing her if they think she’s too liberal (not too conservative).
26 CJJ // May 27, 2009 at 10:38 am
I strongly disagree.
Putting aside the usual targets (Rush, Hannity), what this post is arguing is that the GOP should avoid the issue of race, at all costs, even when the Right is clearly right.
You offer a false choice: Rally people to the GOP or play the white man grievance card. How about the canyon-sized space in between? The space where most Americans of all colors still residethe one still believes we should be a color-blind society. This isnt the 1970s. Today, only one of the two major parties champion the cause of judging people by the content of their character and not the color of their skin. The GOP. Hard to believe, buthere we are.
A strategy that advocates running from one of the most persistent, emotional issues of our day race relations is as dumb as would be a strategy of conceding any other persistent, emotional issue. Democrats are all alone on the field while we fret on the sidelines. Their brand of racial politics is overt and raw. But we have to be silent, even when We. Are. Right.
No sir. Sotomayers collection of statements (and in the case of racial preferences, her silence), go well beyond what Clarence Thomas ever uttered. Check out the Berkeley La Raza Law Journal for more.
La Raza means The Race by the way. Yes, Democrats are quite open about championing racial politics.
27 AlexK // May 27, 2009 at 10:47 am
It’s not that we should run away from her racialism. It’s that we should avoid being victims. Rush Limbaugh and Glenn Beck seem to have a very hard time addressing the issue without making it about…themselves. “This is anti-white male racism! Reverse discrimination!” Boo hoo hoo, everyone’s a victim.
Just address it on the merits of the arguments. Don’t use bombastic, loaded terms. It’s not how you win. We should champion OURSELVES as people of equality, in CONTRAST to her racial preferences, rather than shrilly calling her a racist, saying that she’ll discriminate against white men. Nobody’s going to buy that she’s a racist. All that does is polarize. Issue framing, issue framing, issue framing…
28 24AheadDotCom // May 27, 2009 at 10:56 am
What AlexK said.
Also, *citizen journalists* who are in the NYC area should visit local libraries and try to see if there’s something interesting she did in the past, such as something she said or did when she was with the PRLDEF. Citizen journalists need to do that because neither the MSM nor GOP hacks such as those posting articles at this site are going to do it.
29 CJJ // May 27, 2009 at 11:23 am
Alex,
OK, address it on the merits. I didnt get that from your original post, which said let her statements speak for themselves. To address it well have to actually ‘mention’ it. I agree that the white male grievance is the wrong way to go.
Issue framing, issue framing, issue framing…
YES. Thats my mantra. And what we see here is the result of the GOP failing to frame the issue of race relations: A nominee whose racialism (better word than racism) would have destroyed her if she were a white Republican is seen as a strong pick. This is a direct result of ducking the race issue for so long. (As was the lack of fallout from Obamas 20-year relationship with the racist lunatic Jeremiah Wright. The middle of a campaign is the wrong time to give American voters a crash course on liberal hate speech.)
Heres a test: Would the Dems be so timid in raising the issue of race? No. Then why are we? Well, because well be painted as.
Issue framing. Frame the issue of race properly and we can win because we are right.
30 CJJ // May 27, 2009 at 11:40 am
Alex,
OK, address it on the merits. I didnt get that from your original post, which said let her statements speak for themselves. To address it well have to actually ‘mention’ it. I agree that the white male grievance is the wrong way to go.
Issue framing, issue framing, issue framing…
YES. Thats my mantra. And what we see here is the result of the GOP failing to frame the issue of race relations: A nominee whose racialism (better word than racism) would have destroyed her if she were a white Republican is seen as a strong pick. This is a direct result of ducking the race issue for so long. (As was the lack of fallout from Obamas 20-year relationship with the racist lunatic Jeremiah Wright. The middle of a campaign is the wrong time to give American voters a crash course on liberal hate speech.)
Heres a test: Would the Dems be so timid in raising the issue of race? No. Then why are we? Well, because well be painted as.
Issue framing. Frame the issue of race properly and we can win because we are right.
31 sinz54 // May 28, 2009 at 7:29 am
CJJ: I agree with you, but I would add one more point:
In these Senate hearings, the issue is NOT Sotomayor’s racialist philosophy–it’s also Obama’s racialist philosophy. It’s the philosophy of all Leftist Hispanics and Leftist blacks–that they are OWED for what happened long ago.
Senate Republicans don’t have the votes to stop Sotomayor. And after she gets onto the Court, the public will yawn and forget about her.
But if we can define OBAMA in these hearings, we will score because the public can’t forget about him–he’s POTUS.
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