Princeton, summa cum laude
Yale Law School, editor of Yale Law Journal
Prosecutor in the Southern District of New York (Manhattan) for five years
Federal Judge for 17 years, 10 of which were on the 2nd Circuit Court of Appeals (nominated by both parties for the positions)
Unanimous "Well Qualified" assessment by the American Bar Association (highest rating)
Sounds like a pretty solid candidate for the Supreme Court. Actually, it sounds like a pretty spectacular candidate. So who's this dude?
Wait a second, she's a woman? Hold the phone buddy...uh huh. A Latina woman? Why on God's Green Earth® is the President playing identity politics?! Clearly this is some sort of Affirmative Action pick, done to fill some undefined imaginary quota for Supreme Court Justices. Why can't the President simply pick the best and most well-qualified candidate for the job?
That's a pretty good summary of the Republican opposition to Judge Sotomayor. Because she is a Latina, this is a sign that someone who was clearly more well-qualified (read: white, male) was passed over in order for the President to score political points with liberal special interests groups. Every spectacular achievement apparently is worth less than nothing if it comes from a minority--every highlight on that résumé was clearly made due to special preference given to minorities, even those that are the result of grades! I mean, they just hand out summa cum laudes like car wash fliers at a school like Princeton, right?
I'm not one to scream racism any chance I get, but every time I heard a Republican make an argument that we don't know enough about her record (besides you know, the 17 years worth of opinions) or that they're not certain Judge Sotomayor is qualified enough for the appointment, I thought I'd just explode. Even when faced with blindingly obvious facts that can't be twisted another way, they continue to maintain the same bullshit, all in the name of politics.
You see, the problem is that we have lost the ability to remain objective about the law, despite any rhetoric to the contrary. Hearings are a charade and two shams, with bogus questions aimed at one thing: will you agree with me on this particular pet issue? And for several Senators, it's only one issue (the one that rhymes with shma-shmortion), and if you don't agree, then you CLEARLY are not qualified.
And this is why I say that Intellectual Honesty has died. There once was a time when candidates with ideologies that were polar opposites would be approved by margins of 90 votes or more. Consider that Scalia was approved with a 98-0 vote by a Democratic Congress, and that Ginsburg came onto the Court after a 96-3 vote in her favor! Alas, those days are long gone.
To be fair, I can't blame this all on Republicans. Consider the nomination of John Roberts. While Roberts didn't have the same amount of experience as a Judge, he was probably the most seasoned litigator to appear before the Supreme Court, winning several high-profile cases. His writings also displayed a great intelligence and solid legal foundation. It's just that these were often based on fairly conservative principles, many of which I find to be anathema. That's why I have to admit that if I had been given the chance, I still would have approved Robert's nomination, despite the difference in personal beliefs--there was nothing in his record that showed that he was unqualified in any way. Even so, though Roberts was approved by a large majority, it was not a near-unanimous vote like his predecessors. And you could find that Barack Obama among the "nay" votes on that one. So it's no surprise that you found that today was the first time many Republican Senators would vote "no" on a judicial nominee. But that doesn't make it any less sad.
* * * * *
But Nic, what about some of the "legitimate" arguments against her? Wise Latina woman? Ricci?! Empathy?!!?
Let's take these questions one by one. The big talking point on the right was how the pick that was made solely to satisfy the liberal craving for "diversity" was herself a racist. This was due to the famous "wise latina woman" statement. Surely this is a shining example of racism--she's literally saying that one race is better than the other!
Of course, it might help to examine the quote in context--you know, that tends to be kind of important in these situations. If you look at the surrounding paragraphs, you'll notice that she's talking specifically about discrimination cases. She brought up the fact that Justices Holmes and Cardozo, though brilliant legal minds, never once found for the woman in a discrimination case during their many decades on the bench. It would seem quite odd that there was never an instance of discrimination, especially in the early part of the century. The idea that Sotomayor was expressing was that due to their societal positions, Holmes and Cardozo just could not understand the indignities of discrimination in its many forms--hence the concept of the wise Latina woman and the richness of her experiences. As a likely target, the Latina woman would know firsthand the pain of discrimination, and would understand better the victim's complaint--which is simply true for many things in life. This was the original (and best) explanation for the statement, but of course, politics rule the day so we must maneuver our way into somehow creating a misstatement. Besides, isn't a "wise" anything better than a plain whatever?
Ricci though proves once and for all that for all the calls about limiting Judicial Activism, the principle itself doesn't count for shit. No, it's about time Republicans own up to the fact that it's merely a code word for "this dude wants to give gays some rights". That's because Ricci was all about applying old precedent, and the Supreme Court reversal was all about creating a new standard. Confused? Well, let's explain the case this way: New Haven was in a position that can be described as "totally fucked", since no matter which way they went they were going to get sued--throw out the results, you get a suit from the white firefighters who passed, but if you keep the results, the minority fighters will sue. How can both sides have a case? Well, that's because of a standard called "disparate impact"--a test can be inferred to be racist if the results of the test bear this out in some kind of statistically significant way. This came about during the 70's, as many employers looked to sly means of maintaining a segregated workforce while avoiding a formal declaration, by requiring things like a college degree regardless of the position--something that was unavailable to the vast majority of minorities at the time. So New Haven decided to be proactive and avoid the lawsuit from the black firefighters, and as a result walked right into this lawsuit. The Supreme Court reversed the 2nd Circuit decision*, but what was amazing about their opinion was the lack of resolution. That's because Kennedy's opinion said that while New Haven shouldn't have thrown out the results, that even if they kept the results, the black firefighters would still be able to sue! Ricci is proof of the maxim "bad facts make bad law".**
As for empathy, well, let's just say there's more room for personal interpretation than the hearings the past two weeks would lead you to believe. In cases that rely on things as seemingly simple as a calendar date, there is STILL room for maneuverability. So that's why it makes sense for Obama to look for that quality, among others.
But you know what, screw the facts, let's just play hungry hungry hippos, I mean, politics. We'll just call Judge Sotomayor a racist, even though there's volumes of evidence that prove just the opposite. We'll try to make an issue that Sotomayor has been overruled on multiple occasions, even though by doing so you completely misrepresent the process of Supreme Court review and its meaning. We will lament the fact that by making this token pick in the name of diversity we are clearly leaving out some unknown "superior" candidate, i.e. white and male. We will bitch about the pronunciation of her name. We will continue to spew bullshit.
Let it be said that I am in no way a total supporter of Sotomayor--she's a former hardass prosecutor, and I tend to be very wary of those types, since they tend to exhibit, ahem, less empathy. But just because I'm sure I'll disagree many times with Sotomayor, that doesn't mean she is unqualified for the job. And even though we can now see that Intellectual Honesty has abandoned us, I will still cling to that principle, even if I have to do it alone.
*It's amazing how an unsigned, unanimous opinion gets singularly attributed to Sotomayor. Just think about that.
**I have my own issues with the facts of the Ricci case. Much has been made about the fact that Ricci spent several thousand dollars of his own money on private classes so that his dyslexia would not be a problem for the test. This raises two issues: 1) Why was a promotion to be an officer in the Fire Department dependent on a test that would be affected by dyslexia? One would think that this hindrance would be irrelevant to the tasks associated with the job, yet it was a factor on his performance on the test (he had scored worse before). Yet if it IS a factor, why should this one-time performance be the standard--do we need to fear the instance where the dyslexia plays a factor? And 2) The paying for expensive classes is an example that is played out in the High School level with the SAT, and is evidence of the Cultural Bias of the standardized test--the more well-off students (the majority of them white) pay thousands for classes that help them in essence game the system, while the poorer ones (of which many minorities fall into) get left behind. This is the exact same thing, yet I haven't heard a pundit mention this.
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