The Attack on Sotomayor

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Friday, May 08, 2009 at 12:29 pm

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At first glance, Sonia Sotomayor would seem to be the ideal Supreme Court candidate for President Barack Obama. A highly respected judge on the prestigious Second Circuit Court of Appeals, she was first appointed to the federal bench by a Republican, President George H.W. Bush. Raised in a housing project in the South Bronx to a family of Puerto Rican descent, she went on to graduate summa cum laude from Princeton University and become a law review editor at Yale Law School, mirroring Obama’s own unlikely yet quintessentially American success story. So Sotomayor would certainly seem to embody the bipartisanship, intellectual prowess and capacity for empathy that Obama has suggested are key traits for this first Supreme Court pick.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

But as TWI’s David Wiegel wrote yesterday, conservatives are eager to wield this first choice for the high court against Obama and the Democratic party. Obama’s statement last week that he wants a justice with “empathy” who “understands that justice isn’t about some abstract legal theory or footnote in a case book,” but also “about how our laws affect the daily realities of people’s lives” has become a rallying cry for conservatives, who see “empathetic” as code for “judicial activist” eager twist the law to further liberal sympathies at the expense of constitutional principle.

That Obama said he also wants “somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role” has been largely ignored.

Perhaps because of her seemingly stellar credentials for the job – and the fact that as a woman of Puerto Rican descent Sotomayor would bolster Obama’s reputation with key constituency groups – Republicans have been particularly aggressive in attacking her.

Jay Sekulow, Chief Counsel for the right-wing American Center for Law and Justice, recently claimed on Fox News that Sotomayor is “to the left of Ginsburg and Souter,” without naming a single opinion she’s written. And former Bush advisor Karl Rove, also on Fox, said Sotomayor has a reputation as “very liberal and very expansive” in her reading of the constitution, suggesting that she “makes determinations based on [her] personal feelings towards the plaintiff” rather than based on the law. Again, he cited no examples.

Supreme Court experts are not surprised. “There’s probably a strong correlation between the amount of criticism she’s receiving and the likelihood that she’s going to be selected,” said Adam Winkler, a Constitutional law professor at University of California, Los Angeles.

The three major criticisms circulated by conservative advocates and bloggers are that Sotomayor has a “hard-left record on the Court of Appeals,” as one memo providing conservative talking points puts it; that her “personal views may cloud her jurisprudence,” based on a 2002 speech she gave at Berkeley in which she said judges can consider their “experiences as women and people of color” in making decisions; and anonymous claims from lawyers and former judicial law clerks, cited by Jeffrey Rosen in The New Republic, that Sotomayor can be an aggressive questioner and a “bully” to lawyers and, some claim, is “not that smart.” (Rosen doesn’t mention whether the former clerks might have worked for judges that regularly disagreed with Sotomayor on the court, which may have influenced their opinions.)

Those anonymous swipes have taken off throughout the blogosphere, landing in another conservative organization’s memo attacking Sotomayor, among other candidates.

Interestingly, the The Almanac of the Federal Judiciary, widely relied on by lawyers and potential clerks for its reviews of federal judges, quotes lawyers calling Sotomayor “bright”, “very smart” and “frighteningly smart.” Yet those quotes have been overlooked. Sotomayor has won praise in recent days, however, from lawyers such as Salon blogger Glenn Greenwald, law professor Darren Hutchinson, and former Second Circuit clerk Gerard Maglioca, who all defend both her intellect and temperament.

Conservatives cite one judicial opinion to make the case that Sotomayor is biased.

In Ricci v. DeStefano, 16 disgruntled white men and one Latino sued the New Haven fire department, claiming they were wrongly denied promotions when the city decided not to rely on two promotional exams on which they’d scored well. The Civil Service Board, after realizing that black applicants had had a much lower pass rate than white ones, decided not to certify the test results out of fear that using the results for promotions would leave them vulnerable to civil rights lawsuits.

In a lengthy, detailed opinion, the district court concluded that the city’s decision to avoid making promotions based on a test that had a racially disparate impact was not intentional discrimination against white candidates. “None of the defendants’ expressed motives could suggest to a reasonable juror that defendants acted ‘because of’ animus against non-minority firefighters who took the Lieutenant and Captain exams,” the court wrote.

The white firefighters appealed, and a three-judge panel of the Second Circuit Court of Appeals that included Sotomayor affirmed the lower court’s decision in a per curiam (unsigned) decision, adopting “the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below.” The panel went on to explain that “the Civil Service Board . . . was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact.”

Although courts frequently issue per curiam decisions if the judges want to affirm the lower court’s opinion and accept its reasoning, conservatives have used the brief opinion to attack Sotomayor’s participation in the case as an “irresponsible attempt to reject the firefighters’ important legal claims without even fairly analyzing them in her opinion approving racial discrimination.”

They have ignored, however, that when asked, the full Second Circuit Court of Appeals voted not to re-hear the case, suggesting that a majority of the judges on the court agreed with the three-judge panel’s opinion.

Still, conservatives rely on the dissenting opinion of Judge Jose Cabranes, one of six judges who voted in favor of re-hearing the case, saying that Cabranes “chastised” Sotomayor for “going to extraordinary lengths to dispense with claims of unfair treatment raised by firefighters.”

In fact, Judge Cabranes’ dissent never mentions Judge Sotomayor. It says simply that “the use of per curiam opinions…is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals,” and that the questions in this case, in his view, “are indisputably complex and far from well-settled.”

A majority of his colleagues on the court disagreed with him. The Supreme Court has since agreed to review the case.

While it’s not surprising that conservatives would look to Sotomayor’s role in a reverse-discrimination case to suggest that she’s biased, it’s notable that they have not seized on any opinions that she actually wrote in her 17 years on the bench to demonstrate either bias or weak intellect.

That doesn’t surprise Adam Winkler, the UCLA law professor, who notes that Supreme Court candidates are rarely rejected based on ideology. Appellate court judges, in particular, rarely have the opportunity to take a strong stand on matters of constitutional interpretation. “In the vast majority of decisions, a court of appeals judge is merely trying to interpret Supreme Court precedent,” he said. (It’s worth noting that Sotomayor has also been criticized for telling Duke Law students that appellate courts are “where policy is made” [video here] in urging them to consider a court of appeals clerkship. Although most cases don’t actually make policy, the Ricci case is an excellent example of where they could, and why that statement, while perhaps impolitic, is not inaccurate, as Jonathan Adler at The Volokh Conspiracy has also pointed out.)

Interestingly, one part of Rosen’s article in TNR that conservatives have not been repeating is that some former clerks were concerned that Sotomayor might not provide a “clear liberal alternative” to the conservative justices.

Another way of putting that might be that she’s independent.

Categories & Tags: Commentary| Politics|

Comments

165 Comments

tony smith
Comment posted May 8, 2009 @ 9:52 am

Cabranes is wrong about per curiam opinions. The SCT decided an abortion case per curiam when the standard of review was still in flux afte the Casey plurality reworked the Roe standard.


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afraid
Comment posted May 10, 2009 @ 9:39 am

http://www.nydailynews.com/blogs/dailypolitics/…

The issues that Sotomyer acted to cover up local government conspiracy and corruption need to be addressed. This blog says: “the PLAINTIFF never saw a judge outside of Sonia Sotomayer….Sonia Sotomayer took a dive…She made evidence disappear and then conjured up a false set of facts to justify her actions ….She condoned violations of law and facilitated crimes…She used her position as a political judge to cover up the commission of a felony in the State of NY…She is the poster child up here for what the face of corruption in our government really does look like …Sonia Sotomayer openly dripped contempt for this engineer…. A “John Galt” wrote:

III. FACTS:
On May 22, 2001, Jeffey Pelletier was issued a sewage system construction permit by the County of Rensselaer.
On July 7 (2001), PLAINTIFF conducted an investigation of defendants Aiken (engineer) and McGrath? ?eliberate falsification of inspection data and fraudulent submissions?resulting in the issuance of the Pelletier permit.
During PLAINTIFF'S investigation, Pelletier assaulted him.
On August 9 (2001), defendant Reiter (Rensselaer County Director of Veterans?Services) warned PLAINTIFF to ?ack off?the Pelletier investigation because he (Pelletier) was a ?rotected person?in the county.
On August 17 (2001), defendant Jimino (Rensselaer County Executive) allegedly phoned PLAINTIFF threatening to harm him if he did not stop his investigation.
Thereafter, he claims that Jimino conspired with Cybulski (County Director of Community Services) to obtain a fraudulent involuntary commitment order and a medical certification from Samaritan Hospital.
http://blogs.timesunion.com/capitol/?p=4320#com…
Those facts come right out of a decision by the federal District Court for the Northern District of NY, and I don't dispute them, at all ….
So all Sonia Sotomayer had to do, Mr. Ravi Batra, was apply the law to that set of facts, and this is where you and I join issue, if you will …
When confronted with these same facts during oral presentation in or about November of 2005, what I recall hearing Sonia Sotomayer saying to the PLAINTIFF and to all those in the open courtroom at the time, including myself was “SO WHAT?”
“BIG DEAL!”
“WHO THE **** CARES?”

Maybe Galt was wrong about what happened


Tom
Comment posted May 11, 2009 @ 1:46 am

“Unlikely yet quintessentially” is an oxymoron. If something is unlikely it will not be typical for its group and so not quintessential.


Betsy
Comment posted May 19, 2009 @ 7:19 pm

Daphne Eviatar once again provides excellent, well thought out, balanced analysis. Again, the far right remains eager to thwart leadership of clearly smart, capable and outstanding people devoted to civic service. And shouldn't any “news” organization by now be just embarrassed to present Karl Rove as having any expertise in ANYTHING, except for maybe driving this country into the ground??


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adkins
Comment posted May 26, 2009 @ 7:52 am

Another corrupt, “independent”.


seppie
Comment posted May 26, 2009 @ 7:55 am

So, BO wants a judge that will bring empathy and understands how the law affects the daily reality of peoples' lives. Code for case dismissed because you've, had a hard life, been abused, no one understand's the trials and tribulations you've been through, no education, dysfunctional family, etc. This list will go on and on. Don't look for any real justice from this Justice.


Jeffrey Rodriguez
Comment posted May 26, 2009 @ 8:55 am

She's perfect for the job. The fact that she is a minority female is only icing on the cake.

http://www.jigsawdust.com/journal/2009/5/26/son…


LB
Comment posted June 3, 2009 @ 6:11 pm

She seems to be very intelligent, especially where her own advantages are the concern.

Which is why I do not want her on the Supreme Court.

I happen to think the white firefighters were right, I do believe that if you study and prepare yourself and pass the tests you should be hired.

I do believe so because as a minority woman I am in the group that does not get fair shake, never did.

I do not want a woman who might forget that I have the right to my own body, to that my abilities should be recognized, or that I have the right to freedom of expression.

And if anything , I am left to the Democratic Party.


N
Comment posted June 6, 2009 @ 1:57 pm

Sotomayor by her own words is a proven feminist, racist. Party affiliation has nothing to do with this nomination. Both parties are corrupt liars. Their only concern is lining their own pockets and promoting the corruption in big business. That includes giving illegals amnesty and taking more money from the working responsible taxpayers to give more to illegals and the lazy people in this country. I find humor in the statement “people of color”. Racism has NOTHING to do with skin color, it has to do with they way they think. Drug dealing, rape, murder, intentional destruction of property and NO respect for their fellow man, especially woman. Listen to “rap crap”, pay attention to the plight of woman in Mexico. Soon America will fall because we allowed scum to take over. ANY politcian that votes for Sotomayor should be voted out of office. Write to them and tell them that!!!


N
Comment posted June 6, 2009 @ 8:57 pm

Sotomayor by her own words is a proven feminist, racist. Party affiliation has nothing to do with this nomination. Both parties are corrupt liars. Their only concern is lining their own pockets and promoting the corruption in big business. That includes giving illegals amnesty and taking more money from the working responsible taxpayers to give more to illegals and the lazy people in this country. I find humor in the statement “people of color”. Racism has NOTHING to do with skin color, it has to do with they way they think. Drug dealing, rape, murder, intentional destruction of property and NO respect for their fellow man, especially woman. Listen to “rap crap”, pay attention to the plight of woman in Mexico. Soon America will fall because we allowed scum to take over. ANY politcian that votes for Sotomayor should be voted out of office. Write to them and tell them that!!!


guest
Comment posted July 10, 2009 @ 10:19 pm

Horribly flawed logic! The background you list says nothing about “bipartisanship” or “capacity for empathy”. Intellectual capacity, certainly (though certain prominent Yale and Harvard grads may call that into question), but not at all — nor should you assume — empathy and bipartisanship because she grew up poor and achieved.

“Raised in a housing project in the South Bronx to a family of Puerto Rican descent, she went on to graduate summa cum laude from Princeton University and become a law review editor at Yale Law School, mirroring Obama’s own unlikely yet quintessentially American success story. So Sotomayor would certainly seem to embody the bipartisanship, intellectual prowess and capacity for empathy that Obama has suggested are key traits for this first Supreme Court pick.”


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The issues that Sotomyer acted to cover up local government conspiracy and corruption need to be addressed. This blog says: “the PLAINTIFF never saw a judge outside of Sonia Sotomayer….Sonia Sotomayer took a dive…She made evidence disappear and then conjured up a false set of facts to justify her actions ….She condoned violations of law and facilitated crimes…She used her position as a political judge to cover up the commission of a felony in the State of NY…She is the poster child up here for what the face of corruption in our government really does look like …Sonia Sotomayer openly dripped contempt for this engineer…. A “John Galt” wrote:


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