What Obama did not do: pick the most learned or intelligent or wisest lawyer available to him.
What he did do: pick the justice he deemed most likely to secure him a demographic constituency in 2008.
This is pure Chicagoland politics, using one of the president’s most important powers for the most narrow partisan purposes.
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” — Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001
The above assertion and the rest of a remarkable speech to a Hispanic group by Sotomayor — widely touted as a possible Obama nominee to the Supreme Court — has drawn very little attention in the mainstream media since it was quoted deep inside The New York Times on May 15.
It deserves more scrutiny, because apart from Sotomayor’s Supreme Court prospects, her thinking is representative of the Democratic Party’s powerful identity-politics wing.
Sotomayor also referred to the cardinal duty of judges to be impartial as a mere “aspiration because it denies the fact that we are by our experiences making different choices than others.” And she suggested that “inherent physiological or cultural differences” may help explain why “our gender and national origins may and will make a difference in our judging.”
So accustomed have we become to identity politics that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males. Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.
Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.
Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: “I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn’t lived that life” — and had proceeded to speak of “inherent physiological or cultural differences.”
So much for candidate Obama’s bold rhetoric of national unity. In the crunch, he sides with the dividers of America, the multiculturalists. There is rich ground here for questioning at the hearings. It is worth remembering Brent Scowcroft’s reaction to news of the attempted overthrow of Boris Yeltsin by hardline communists in 1991: “coups sometimes fail.” So sometimes do nominations.
27 responses so far
1 InTheMiddle12 // May 26, 2009 at 7:06 am
I think the right better think twice before going to the mattresses over the Sotomayor pick. Let’s not forget who originally put Judge Sotomayor up for a seat, it was Poppy Bush.
From what I’ve read of the Judge she seems more than qualified with the longest serving bench time than any previous pick, Sum Laude from Princeton and Yale Law School. I’m sure her opinions will be vetted as they should be, but coming short of something truly horrific in her personal life, I don’t see a big fight here – beyond one just for television.
BUT the GOP better be very careful. I just took the pulse of my office mates, 10 Latins and let me tell you (some of whom are Conservative Cubans), they are very very happy he has chosen a Latin Judge. And if you don’t think there would be political fall out from the GOPs attacking its first Latin Judge, let me remind you of the Immigration law and what it did to the GOP (Ronald Reagan’s home state) in California!
2 sinz54 // May 26, 2009 at 7:12 am
I’m sure that if you had asked Thurgood Marshall about the experience of race, he would have given you exactly the same reply (but worded even more strongly!): That being a member of a minority group gives you more first-hand experience as to the injustices minorities experience, than if you were born white and lived in a mostly white area of the nation.
In fact, we heard similar things from Colin Powell and Obama himself.
That’s just how liberals think. And it was a foregone conclusion that Obama would name a liberal.
3 ottovbvs // May 26, 2009 at 7:13 am
Sotomayor was always on his top three shortlist. She doesn’t seem quite such a distinguised legal scholar as Kagan but she’s certainly not a lightweight by any means and was after all originally placed on the bench by George Herbert Walker Bush. David’s right that there are some political side benefits but that doesn’t mean she’s unqualified. I suspect we’re going to find the other two ladies on Obama’s shortlist on the court before he’s finished. In the meantime the Republicans are crazy if they walk into the trap of trying to trash this woman as David already has with his suggestions of gangster politics. Basically it’s ridiculous. At the end of the day I suspect cooler heads will prevail and half the Republicans will end up voting to confirm her.
4 sinz54 // May 26, 2009 at 7:13 am
The GOP should put up a fight, if only to make itself more visible.
But it must be careful NOT to “Bork” this woman. It must focus on judicial philosophy, NOT engage in personal attacks.
Personal attacks on Sotomayor would hurt the GOP with Hispanic voters.
5 ottovbvs // May 26, 2009 at 7:15 am
“That being a member of a minority group gives you more first-hand experience as to the injustices minorities experience, than if you were born white and lived in a mostly white area of the nation.
In fact, we heard similar things from Colin Powell and Obama himself.
That’s just how liberals think. And it was a foregone conclusion that Obama would name a liberal.”
…….It also happens to be a perfectly reasonable conclusion to draw.
6 ireign // May 26, 2009 at 7:22 am
Sotomayor is much further to the left than Alito who Democrats tried to filibuster is to the right. Moreover, in line with Democrats’ claims since Souter was a Republican, Democrats should have picked a registered Republican:)
I think this is going to backfire on Obama much the way Harriet Miers backfired on Bush for not picking the best candidate. Obama, unlike Bush, was given credible suggestions by Republicans as to liberal justices who would be acceptable such as Wood (who is also a staunch liberal) and he instead chose to ram through someone more controversial.
Given that Obama voted against Alito and Roberts, Republicans would be advised to ask criticial questions and at least consider opposing her nomination regardless of the political calculations.
7 ireign // May 26, 2009 at 7:25 am
Ottobs-She was picked by Moynihan and was selected by HW as a compromise. Please do some research before spouting off and misleading people. There are plenty of conservatives on the bench who were “picked” by Bill Clinton in the same manner.
8 Churl // May 26, 2009 at 7:28 am
Surely Ms. Sotomayer should be acceptable to conservatives as a Supreme Court Justice because she was appointed by Barack Obama, whom Colin Powell (Bruce Bartlett’s nominee for Savior of Conservatism) supported for President.
9 ajr // May 26, 2009 at 7:29 am
@InTheMiddle12 What should be examined is the number of times she has had her decisions reversed. From there, you will be able to see her effectiveness in her judicial positions. When it comes down to it, it isn’t a person’s deeds that gets elevated–only their politics and gender. It is high time that someone pushes someone forward due to their qualifications *and* effectiveness, not by who they sleep with, how they vote, and their chromosomal make-up. From what I have read, Sotomayor ruled that some kind of firefighter’s test is not usable because minorities could not pass it. This in itself is wrong on many levels. I have no hope for this judge.
10 ireign // May 26, 2009 at 7:34 am
From the NY Times, “She had been nominated to the district court in 1992 by the first President Bush, but actually chosen for the seat by Senator Daniel Patrick Moynihan, a Democrat, who had an arrangement with his Republican counterpart, Senator Alfonse M. DAmato, to share district court judge selections in New York.”
11 bertrand // May 26, 2009 at 7:54 am
I actually think it’s the Republicans who play identity politics, while Democrats appoint representatives from groups that actually vote for them in overwhelming numbers.
Or maybe I’m wrong. Perhaps Bobby Jindal is a stirring orator, Michael Steele a master strategist, and Alberto Gonzales a first rate legal mind.
Regardless, Sotomayor is undeniably qualified. She may not be the “best” in some people’s estimation, but she fits Obama’s specifications ideally–the much derided “empathy”. Claiming or that the decision was political (especially in such hysterical tones) is politicizing the issue in reverse.
12 balconesfault // May 26, 2009 at 8:07 am
“I think this is going to backfire on Obama much the way Harriet Miers backfired on Bush for not picking the best candidate.”
Harriet Miers? Please. When we find personal correspondence from Sotomayer to Obama exclaiming “You’re the Best Senator Ever!!!!” we can begin to draw that comparison. Miers was a disaster not because she wasn’t “the best candidate” … but because the widespread opinion was that she wasn’t even a credible candidate. Nobody really liked the unseemly spectacle of Supreme Court Justice roles being deemed out as favors to loyal personal friends.
13 sinz54 // May 26, 2009 at 8:29 am
bertrand: The Senate Republicans should ask very tough questions of Sotomayor as a way to lay out OUR philosophy of the Constitution, and how it differs from Sotomayor’s.
I don’t believe in “empathy” when interpreting the Constitution. “Empathy” effectively takes the blindfold off Lady Liberty and puts a finger on her scales, to weight things in favor of Democratic interest groups.
There’s no “empathy” for entrepreneurs, or investors, or conservatives. “Empathy” is a code word for favoring “protected classes,” organized labor, and other Democratic constituent groups, under the camouflage of legalisms. Oh, and also favoring terrorists and criminals over their victims and the general public
14 Bulldoglover100 // May 26, 2009 at 9:03 am
Oh kinda like when the first black man was appointed?
LOL Your looking pretty silly and small here David…and saying that George H.W Bush appointed an idiot when HE appointed her to the bench originally…….keep the spin straight David or you make us all look bad…..
15 ireign // May 26, 2009 at 9:04 am
Balconesfault-Harriet Miers was the head of one of the largest law firms in Texas and was White House Counsel. She didn’t have constitutional law experience but neither did Harlan or Warren and many other famous judges. That is a fairly recent trend. Miers wasn’t the best person for the job but I am sure she would have been competent. Sotomayor by all accounts wasn’t the most qualified justice but fit certain criteria that the President wanted. So did Miers who was recommended by Harry Reid and was appointed not solely because she was friend of the President’s but it was generally thought that she would be an easy confirmation and would add diversity as a woman. You might remember Reid as the Democratic Majority Leader.
Thus the comparison between Sotomayor and Miers is apt.
16 ireign // May 26, 2009 at 9:16 am
You are like a broken clock. You continue to peddle the recycled and misleading argument that since HW Bush appointed her that someone that makes her a moderate. As I have explained to you time and again (please see below), Bush’s appointment was based on Senator Moynihan’s recommendation and was part of an agreement between the New York Senators.
I don’t think David ever said she was an “idiot”. Sotomayor, is presumably very smart. That doesn’t mean that she was the best candidate or deserves to be rubber stamped without a hearing. Obama picked a candidate that he knew might be problematic and thus, there could be a contentious legal battle. Alternatively, Sotomayor might shine during the hearing and put Messrs. Taylor and Rosen to shame.
17 ericna // May 26, 2009 at 9:46 am
I know absolutely nothing about Sotomayor except what I just read on Wikipedia. The Wikipedia page mentions a few of her opinions. Except for the case of employer discrimination in New Haven, all her opinions sound rather conservative, pro-business and in one case pro-life. What is going on?
18 mlindroo // May 26, 2009 at 10:16 am
ericna wrote:
> Except for the case of employer discrimination in New
> Haven, all her opinions sound rather conservative,
> pro-business and in one case pro-life.
Indeed. Sotomayor is not regarded as a “liberal Scalia” by the liberal blogs, some of whom lament there has been no hardcore liberal nominee since the 1960s. They think Sotomayor is another center-left mainstream pick who (unlike the feisty Pamela S. Karlan) is not an ideologue.
—
I think many of the comments below are unfair to her. Like Clarence Thomas, she might not be the “best” (whatever that means) but she has a Princeton and Yale background despite working her way up from humble beginnings and she has a lengthy career on the district court bench and elsewhere. She is not Harriet Miers by any stretch of the imagination. Ideological objections aside, is anyone here seriously arguing that she does not meet the formal qualifications for the job in terms of professional knowledge and experience?
—-
Finally, I would argue that having a qualified Hispanic woman on the Court is valuable in itself. Since the Supreme Court makes decisions that affect all Americans regardless of race, sex, ideology or creed, it should “look like America” as much as possible. There is still a significant gender imbalance, so this is factor that Obama should consider also when Stevens and (in particular) Ginsburg finally announce their retirement.
MARCU$
19 sinz54 // May 26, 2009 at 11:28 am
mlindroo sez: “it should ‘look like America’ as much as possible.”
Great! Then since there are more self-described conservatives among the American people then self-described liberals, that means that Obama should nominate more conservatives than liberals.
Except that’s not what liberals like you mean by “look like America.” You mean the Court should consist of:
4 liberal men (of whom one is black)
5 liberal women (of whom one is Hispanic)
When you say “look like America,” your conception of “America” is a country composed of 100% liberals.
20 balconesfault // May 26, 2009 at 3:26 pm
“that means that Obama should nominate more conservatives than liberals.”
Doesn’t need to. It’s libertarians who are underrepresented, not conservatives.
21 balconesfault // May 26, 2009 at 3:29 pm
“Except for the case of employer discrimination in New Haven, all her opinions sound rather conservative, pro-business and in one case pro-life. What is going on?”
She was nominated by Obama? It’s hard to define yourself as the “Party of No” if you don’t say “No” to everything Obama tries to do.
Hell – it took a swine flu outbreak to finally get Republicans to lift their block on a HHS Secretary who had been Governor of a red state.
22 ottovbvs // May 26, 2009 at 4:54 pm
ireign
9:16 AM
“and was part of an agreement between the New York Senators.”
……Hey mastermind….supreme court justices are nominated by the president NOT by senators even one’s as illustrious as Daniel Patrick and Pothole……Your “explanations’ bear little relation to the facts…..however many times you repeat them
23 lucas // May 27, 2009 at 2:23 am
The idea of a ‘best pick’ is a conventional wisdom fallacy. Within the framework of a given ideology, it becomes impossible to predict which person within group with similar intelligence and work ethic which would be the best.
Many won’t like Sontomayor’s ideology, but given her experience it is unlikely that she doesn’t have the intelligence and work ethic to be just as likely to be the ‘best’ as anyone else.
24 lucas // May 27, 2009 at 2:32 am
is anyone else tired of hearing, ‘Supreme Court Justice _____ has a brilliant mind’? As if one can tell from being acquainted the relative brilliance of the judges. Is labeling one particular judge brilliant with no other context saying the others aren’t as brilliant by implication? Is this anything more then a comment on what one thinks of of the judges ideology and personality dressed up in ‘my opinion is important’? Or just spouting conventional wisdom to sound smart?
agree or disagree?
25 ottovbvs // May 27, 2009 at 6:32 am
lucas
2:32 AM
…….By definition all the supreme court justices are fairly bright people but comparing supreme court justices with everyday people is like comparing Mickey Mantle with a baseball dad. You can only compare them with peer groups which means a fairly small universe of other supremes, top appellate judges and a handful of distinguised practising attorneys or law professors. It’s a universe of a few hundred people at most. By this standard all the current supremes with the exception of Thomas would qualify as brilliant minds although with perhaps degrees of brilliance. Scalia unquestionably is one of the most brilliant men on the court although he’s obviously partisan and lacks a judicial temperament which is why despite his brilliance he hasn’t been very effective at building judicial coalitions to support his views. Roberts who is marginally less brilliant perhaps has been far more successful as a coalition builder. A couple of lawyers I know rate Scalia, Ginsburg and Breyer as the most intellectually powerful judges on the court.
26 sinz54 // May 27, 2009 at 9:41 am
Of course political considerations entered into Obama’s pick of Sotomayor. Nothing new there.
Does anyone really think Clarence Thomas would have been nominated if he had been white? Does anyone think Bush nominated Harriet Myers because of her exemplary legal record?
The only issues here are the judicial philosophies of Sotomayor and the Chief Executive who nominated her: Racialist, feminist, judicial activist, left-wing radical. She’s the Hispanic answer to Thurgood Marshall, whom she has named as a role model and inspiration.
Sotomayor’s personality or the politics behind her pick are not going to matter to the American people.
27 lucas // May 27, 2009 at 4:30 pm
otto,
Not sure if I am missing the point of your post or you are missing the point of mine.
Here is a sports comparison. Looking back it is easy to say, ‘Michael Jordan is the best basketball player ever’. Just as it is easy to say ‘_____is the supreme court justice with the highest intellect’.
But in basketball there have been dozens of ‘the next Michael Jordan’. Early in his career, it wasn’t a given that Michael Jordan would become ‘Michael Jordan’–remember he was drafted after a player named Sam Bowie.
Getting back to SC candidates, it is impossible to guess who will be the Michael Jordan of the SC. With history we may be able to distinguish degrees of greatness, but among people that are all qualified it is impossible to predict which would have been the greatest. This is why I reject the argument that she isn’t the ‘best’ choice. The ‘best’ choice is a false choice. The only thing that one can choose is a qualified choice.
(Malcolm Gladwell’s book Outliers refers to some data about how college admissions programs fail to create a better outcome by attempting to discern which students would be the most successful–best–from a pool of highly qualified candidates).
It is possible (though now seems unlikely) that something comes up in her record that should disqualify her (perhaps a unanimous overturn of Ricci). In which case, she is not a qualified choice. But any talk of ‘best candidate’ by either side is pure politics.
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