Supreme Court Oath of Office
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- Start date
fossten
Dedicated LVC Member
Crickets from the lefties.
A Judge’s View of Judging Is on the Record
By CHARLIE SAVAGE
WASHINGTON — In 2001, Sonia Sotomayor, an appeals court judge, gave a speech declaring that the ethnicity and sex of a judge “may and will make a difference in our judging.”
In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O’Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.
“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,” said Judge Sotomayor, who is now considered to be near the top of President Obama’s list of potential Supreme Court nominees.
Her remarks, at the annual Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California, Berkeley, were not the only instance in which she has publicly described her view of judging in terms that could provoke sharp questioning in a confirmation hearing.
This month, for example, a video surfaced of Judge Sotomayor asserting in 2005 that a “court of appeals is where policy is made.” She then immediately adds: “And I know — I know this is on tape, and I should never say that because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m not advocating it. I’m — you know.”
The video was of a panel discussion for law students interested in becoming clerks, and she was explaining the different experiences gained when working at district courts and appeals courts. Her remarks caught the eye of conservative bloggers who accused her of being a “judicial activist,” although Jonathan H. Adler, a professor at Case Western Reserve University law school, argued that critics were reading far too much into those remarks.
Republicans have signaled that they intend to put the eventual nominee under a microscope, and they say they were put on guard by Mr. Obama’s statement that judges should have “empathy,” a word they suggest could be code for injecting liberal ideology into the law.
Judge Sotomayor has given several speeches about the importance of diversity. But her 2001 remarks at Berkeley, which were published by the Berkeley La Raza Law Journal, went further, asserting that judges’ identities will affect legal outcomes.
“Whether born from experience or inherent physiological or cultural differences,” she said, for jurists who are women and nonwhite, “our gender and national origins may and will make a difference in our judging.”
Her remarks came in the context of reflecting her own life experiences as a Hispanic female judge and on how the increasing diversity on the federal bench “will have an effect on the development of the law and on judging.”
In making her argument, Judge Sotomayor sounded many cautionary notes. She said there was no uniform perspective that all women or members of a minority group have, and emphasized that she was not talking about any individual case.
She also noted that the Supreme Court was uniformly white and male when it delivered historic rulings against racial and sexual discrimination. And she said she tried to question her own “opinions, sympathies and prejudices,” and aspired to impartiality.
Still, Judge Sotomayor questioned whether achieving impartiality “is possible in all, or even, in most, cases.” She added, “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”
She also approvingly quoted several law professors who said that “to judge is an exercise of power” and that “there is no objective stance but only a series of perspectives.”
“Personal experiences affect the facts that judges choose to see,” she said.
Charles J. Ogletree Jr., a Harvard law professor and an adviser to Mr. Obama, said Judge Sotomayor’s remarks were appropriate. Professor Ogletree said it was “obvious that people’s life experiences will inform their judgments in life as lawyers and judges” because law is more than “a technical exercise,” citing Justice Oliver Wendell Holmes Jr.’s famous aphorism: “The life of the law has not been logic; it has been experience.”
In a forward to a 2007 book, “The International Judge” (U.P.N.E.), Judge Sotomayor seemed to put a greater emphasis on a need for judges to seek to transcend their identities, writing that “all judges have cases that touch our passions deeply, but we all struggle constantly with remaining impartial” and letting reason rule. Courts, she added, “are in large part the product of their membership and their judges’ ability to think through and across their own intellectual and professional backgrounds” to find common ground.
By CHARLIE SAVAGE
WASHINGTON — In 2001, Sonia Sotomayor, an appeals court judge, gave a speech declaring that the ethnicity and sex of a judge “may and will make a difference in our judging.”
In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O’Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.
“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,” said Judge Sotomayor, who is now considered to be near the top of President Obama’s list of potential Supreme Court nominees.
Her remarks, at the annual Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California, Berkeley, were not the only instance in which she has publicly described her view of judging in terms that could provoke sharp questioning in a confirmation hearing.
This month, for example, a video surfaced of Judge Sotomayor asserting in 2005 that a “court of appeals is where policy is made.” She then immediately adds: “And I know — I know this is on tape, and I should never say that because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m not advocating it. I’m — you know.”
The video was of a panel discussion for law students interested in becoming clerks, and she was explaining the different experiences gained when working at district courts and appeals courts. Her remarks caught the eye of conservative bloggers who accused her of being a “judicial activist,” although Jonathan H. Adler, a professor at Case Western Reserve University law school, argued that critics were reading far too much into those remarks.
Republicans have signaled that they intend to put the eventual nominee under a microscope, and they say they were put on guard by Mr. Obama’s statement that judges should have “empathy,” a word they suggest could be code for injecting liberal ideology into the law.
Judge Sotomayor has given several speeches about the importance of diversity. But her 2001 remarks at Berkeley, which were published by the Berkeley La Raza Law Journal, went further, asserting that judges’ identities will affect legal outcomes.
“Whether born from experience or inherent physiological or cultural differences,” she said, for jurists who are women and nonwhite, “our gender and national origins may and will make a difference in our judging.”
Her remarks came in the context of reflecting her own life experiences as a Hispanic female judge and on how the increasing diversity on the federal bench “will have an effect on the development of the law and on judging.”
In making her argument, Judge Sotomayor sounded many cautionary notes. She said there was no uniform perspective that all women or members of a minority group have, and emphasized that she was not talking about any individual case.
She also noted that the Supreme Court was uniformly white and male when it delivered historic rulings against racial and sexual discrimination. And she said she tried to question her own “opinions, sympathies and prejudices,” and aspired to impartiality.
Still, Judge Sotomayor questioned whether achieving impartiality “is possible in all, or even, in most, cases.” She added, “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”
She also approvingly quoted several law professors who said that “to judge is an exercise of power” and that “there is no objective stance but only a series of perspectives.”
“Personal experiences affect the facts that judges choose to see,” she said.
Charles J. Ogletree Jr., a Harvard law professor and an adviser to Mr. Obama, said Judge Sotomayor’s remarks were appropriate. Professor Ogletree said it was “obvious that people’s life experiences will inform their judgments in life as lawyers and judges” because law is more than “a technical exercise,” citing Justice Oliver Wendell Holmes Jr.’s famous aphorism: “The life of the law has not been logic; it has been experience.”
In a forward to a 2007 book, “The International Judge” (U.P.N.E.), Judge Sotomayor seemed to put a greater emphasis on a need for judges to seek to transcend their identities, writing that “all judges have cases that touch our passions deeply, but we all struggle constantly with remaining impartial” and letting reason rule. Courts, she added, “are in large part the product of their membership and their judges’ ability to think through and across their own intellectual and professional backgrounds” to find common ground.
MonsterMark
Dedicated LVC Member
I think she is a great pick and will further hasten the destruction of the United States of Socialist America.
So congrats go out to Obama. Great pick. She perfectly reflects his ideology.
So congrats go out to Obama. Great pick. She perfectly reflects his ideology.
Empathy Versus Law
by Walter E. Williams
President Obama's articulated criteria for his nominee to the U.S. Supreme Court is: "We need somebody who's got the heart to recognize -- the empathy to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."
What is the role of a U.S. Supreme Court justice? A reasonable start for an answer is the recognition that our Constitution represents the rules of the game. A Supreme Court justice has one job and one job only namely; he is a referee. There is nothing complicated about this. A referee's job, whether he is a football referee or a Supreme Court justice, is to know the rules of the game and make sure that they are evenly applied without bias. Do we want referees to allow empathy to influence their decisions? Let's look at it using this year's Super Bowl as an example.
The Pittsburgh Steelers have won six Super Bowl titles, seven AFC championships and hosted 10 conference games. No other AFC or NFC team can match this record. By contrast, the Arizona Cardinals' last championship victory was in 1947 when they were based in Chicago. In anyone's book, this is a gross disparity. Should the referees have the empathy to understand what it's like to be a perennial loser and what would you think of a referee whose decisions were guided by his empathy? Suppose a referee, in the name of compensatory justice, stringently applied pass interference or roughing the passer violations against the Steelers and less stringently against the Cardinals. Or, would you support a referee who refused to make offensive pass interference calls because he thought it was a silly rule? You'd probably remind him that the league makes the rules, not referees.
I'm betting that most people would agree that football justice requires that referees apply the rules blindly and independent of the records or any other characteristic of the two teams. Moreover, I believe that most people would agree that referees should evenly apply the rules of the games even if they personally disagreed with some of the rules.
The relationship between Supreme Court justices and the U.S. Constitution should be identical to that of referees and football rules. The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions. That's why Lady Justice, often appearing on court buildings, is shown wearing a blindfold. It is to indicate that justice should be meted out impartially, regardless of identity, power or weakness. Also, as Justice Oliver Wendell Holmes said, "Men should know the rules by which the game is played. Doubt as to the value of some of those rules is no sufficient reason why they should not be followed by the courts." The legislative branch makes the rules, not judges.
Interventionists often make their case for bending the rules based on the unfairness of outcomes such as differences in income, education and wealth. After all, how can the game of life possibly be fair when some people's yearly income totals in the hundreds of thousands, even millions of dollars, while many others scarcely earn twenty or thirty thousand dollars? Some people find that argument persuasive but it's nonsense. Income distribution is an outcome and fairness cannot be determined by outcomes. It's the same with football. The Steelers winning six Super Bowl titles and Arizona winning none is an outcome and cannot be used to determine football fairness. Fairness in either case must be settled by process questions such as: Were the rules unbiased and evenly applied? If so, any outcome is just and actions based on empathy would make it unjust.
by Walter E. Williams
President Obama's articulated criteria for his nominee to the U.S. Supreme Court is: "We need somebody who's got the heart to recognize -- the empathy to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."
What is the role of a U.S. Supreme Court justice? A reasonable start for an answer is the recognition that our Constitution represents the rules of the game. A Supreme Court justice has one job and one job only namely; he is a referee. There is nothing complicated about this. A referee's job, whether he is a football referee or a Supreme Court justice, is to know the rules of the game and make sure that they are evenly applied without bias. Do we want referees to allow empathy to influence their decisions? Let's look at it using this year's Super Bowl as an example.
The Pittsburgh Steelers have won six Super Bowl titles, seven AFC championships and hosted 10 conference games. No other AFC or NFC team can match this record. By contrast, the Arizona Cardinals' last championship victory was in 1947 when they were based in Chicago. In anyone's book, this is a gross disparity. Should the referees have the empathy to understand what it's like to be a perennial loser and what would you think of a referee whose decisions were guided by his empathy? Suppose a referee, in the name of compensatory justice, stringently applied pass interference or roughing the passer violations against the Steelers and less stringently against the Cardinals. Or, would you support a referee who refused to make offensive pass interference calls because he thought it was a silly rule? You'd probably remind him that the league makes the rules, not referees.
I'm betting that most people would agree that football justice requires that referees apply the rules blindly and independent of the records or any other characteristic of the two teams. Moreover, I believe that most people would agree that referees should evenly apply the rules of the games even if they personally disagreed with some of the rules.
The relationship between Supreme Court justices and the U.S. Constitution should be identical to that of referees and football rules. The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions. That's why Lady Justice, often appearing on court buildings, is shown wearing a blindfold. It is to indicate that justice should be meted out impartially, regardless of identity, power or weakness. Also, as Justice Oliver Wendell Holmes said, "Men should know the rules by which the game is played. Doubt as to the value of some of those rules is no sufficient reason why they should not be followed by the courts." The legislative branch makes the rules, not judges.
Interventionists often make their case for bending the rules based on the unfairness of outcomes such as differences in income, education and wealth. After all, how can the game of life possibly be fair when some people's yearly income totals in the hundreds of thousands, even millions of dollars, while many others scarcely earn twenty or thirty thousand dollars? Some people find that argument persuasive but it's nonsense. Income distribution is an outcome and fairness cannot be determined by outcomes. It's the same with football. The Steelers winning six Super Bowl titles and Arizona winning none is an outcome and cannot be used to determine football fairness. Fairness in either case must be settled by process questions such as: Were the rules unbiased and evenly applied? If so, any outcome is just and actions based on empathy would make it unjust.
topher5150
Dedicated LVC Member
is that twat that "bases judgments on emotions, and feelings"
luxuryrules
Dedicated LVC Member
We'll see if she gets approved. Remember, this is coming from the team who keeps having people back out for "undisclosed tax reasons" 
So who would you (Cal, Foss, & Bryan) prefer to see nominated for the Bench?
So who would you (Cal, Foss, & Bryan) prefer to see nominated for the Bench?
The 'Empathy' Nominee
Is Sonia Sotomayor judically superior to 'a white male'?
In making Sonia Sotomayor his first nominee for the Supreme Court yesterday, President Obama appears to have found the ideal match for his view that personal experience and cultural identity are the better part of judicial wisdom.
This isn't a jurisprudence that the Founders would recognize, but it is the creative view that has dominated the law schools since the 1970s and from which both the President and Judge Sotomayor emerged. In the President's now-famous word, judging should be shaped by "empathy" as much or more than by reason. In this sense, Judge Sotomayor would be a thoroughly modern Justice, one for whom the law is a voyage of personal identity.
"Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers," Mr. Obama said yesterday in introducing Ms. Sotomayor. "It is experience that can give a person a common touch of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of Justice we need on the Supreme Court."
In a speech published in the Berkeley La Raza Law Journal in 2002, Judge Sotomayor offered her own interpretation of this jurisprudence. "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," she declared. "I am . . . not so sure that I agree with the statement. First, . . . 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."
We quote at such length because, even more than her opinions, these words are a guide to Ms. Sotomayor's likely behavior on the High Court. She is a judge steeped in the legal school of identity politics. This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday. Her personal and family stories are admirable. Italian-Americans also swelled at the achievement of Justice Antonin Scalia, as Jewish-Americans did at the nomination of Benjamin Cardozo.
But these men saw themselves as judges first and ethnic representatives second. Judge Sotomayor's belief is that a "Latina woman" is by definition a superior judge to a "white male" because she has had more "richness" in her struggle. The danger inherent in this judicial view is that the law isn't what the Constitution says but whatever the judge in the "richness" of her experience comes to believe it should be.
There are signs of what this means in practice in her lower court decisions. One of them is Ricci v. DeStefano, involving the promotion of white firefighters in New Haven and now pending before the Supreme Court. In the case, heard by a three-judge panel including Judge Sotomayor, the city refused to certify promotion exams when the results of the exam would have elevated 18 white firefighters and one Hispanic -- an outcome that would have underrepresented minorities. The firefighters sued, charging discrimination.
After the three judge panel issued a brief opinion repeating the district court's decision, the appeals court declined to rehear the case en banc, an outcome which infuriated Ms. Sotomayor's colleague and fellow Clinton appointee Jose Cabranes. In a dissent joined by five of his colleagues, Judge Cabranes criticized the slip-shod handling of the case by a majority that lacked the courage of its racial preference convictions. The "perfunctory disposition" of the opinion, he noted, "lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal."
Judge Cabranes added that the discrimination issues raised by the case were "worthy of review" by the Supreme Court, which took the case and may well overturn the Sotomayor panel's ruling. The case raises the question of whether a judge with an avowed commitment to applying her own "experience" to cases was disinclined to an argument made by those not sharing that personal experience.
Or consider the result last year in Knight v. Commissioner, in which the Supreme Court unanimously upheld her ruling in a tax case involving individual tax deductions, even as her reasoning drew a rebuke from Chief Justice John Roberts. The Second Circuit opinion "flies in the face of the statutory language," he wrote for the Court.
In April, the Supreme Court overturned 6-3 her 2007 ruling in Riverkeeper v. EPA in which she found that the EPA could not consider cost-benefit analysis in judging whether companies need to upgrade to the best technology available, even when the costs were wholly disproportionate to the benefits. And in the 2006 case of Merrill Lynch v. Dabit, the Court ruled 8-0 to overturn her position that a state class-action lawsuit against Merrill Lynch was not pre-empted by federal law.
Even the best judges get overturned, of course, but the issue here is less the result than Judge Sotomayor's legal reasoning. As a lower court judge, she was restrained by a higher authority. On the Supreme Court, she is limited only by the other Justices she can win over to her arguments.
As the first nominee of a popular President and with 59 Democrats in the Senate, Judge Sotomayor is likely to be confirmed barring some major blunder. But Republicans can use the process as a teaching moment, not to tear down Ms. Sotomayor on personal issues the way the left tried with Justices Clarence Thomas and Sam Alito, but to educate Americans about the proper role of the judiciary and to explore whether Judge Sotomayor's Constitutional principles are as free-form as they seem from her record.
Is Sonia Sotomayor judically superior to 'a white male'?
In making Sonia Sotomayor his first nominee for the Supreme Court yesterday, President Obama appears to have found the ideal match for his view that personal experience and cultural identity are the better part of judicial wisdom.
This isn't a jurisprudence that the Founders would recognize, but it is the creative view that has dominated the law schools since the 1970s and from which both the President and Judge Sotomayor emerged. In the President's now-famous word, judging should be shaped by "empathy" as much or more than by reason. In this sense, Judge Sotomayor would be a thoroughly modern Justice, one for whom the law is a voyage of personal identity.
"Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers," Mr. Obama said yesterday in introducing Ms. Sotomayor. "It is experience that can give a person a common touch of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of Justice we need on the Supreme Court."
In a speech published in the Berkeley La Raza Law Journal in 2002, Judge Sotomayor offered her own interpretation of this jurisprudence. "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," she declared. "I am . . . not so sure that I agree with the statement. First, . . . 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."
We quote at such length because, even more than her opinions, these words are a guide to Ms. Sotomayor's likely behavior on the High Court. She is a judge steeped in the legal school of identity politics. This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday. Her personal and family stories are admirable. Italian-Americans also swelled at the achievement of Justice Antonin Scalia, as Jewish-Americans did at the nomination of Benjamin Cardozo.
But these men saw themselves as judges first and ethnic representatives second. Judge Sotomayor's belief is that a "Latina woman" is by definition a superior judge to a "white male" because she has had more "richness" in her struggle. The danger inherent in this judicial view is that the law isn't what the Constitution says but whatever the judge in the "richness" of her experience comes to believe it should be.
There are signs of what this means in practice in her lower court decisions. One of them is Ricci v. DeStefano, involving the promotion of white firefighters in New Haven and now pending before the Supreme Court. In the case, heard by a three-judge panel including Judge Sotomayor, the city refused to certify promotion exams when the results of the exam would have elevated 18 white firefighters and one Hispanic -- an outcome that would have underrepresented minorities. The firefighters sued, charging discrimination.
After the three judge panel issued a brief opinion repeating the district court's decision, the appeals court declined to rehear the case en banc, an outcome which infuriated Ms. Sotomayor's colleague and fellow Clinton appointee Jose Cabranes. In a dissent joined by five of his colleagues, Judge Cabranes criticized the slip-shod handling of the case by a majority that lacked the courage of its racial preference convictions. The "perfunctory disposition" of the opinion, he noted, "lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal."
Judge Cabranes added that the discrimination issues raised by the case were "worthy of review" by the Supreme Court, which took the case and may well overturn the Sotomayor panel's ruling. The case raises the question of whether a judge with an avowed commitment to applying her own "experience" to cases was disinclined to an argument made by those not sharing that personal experience.
Or consider the result last year in Knight v. Commissioner, in which the Supreme Court unanimously upheld her ruling in a tax case involving individual tax deductions, even as her reasoning drew a rebuke from Chief Justice John Roberts. The Second Circuit opinion "flies in the face of the statutory language," he wrote for the Court.
In April, the Supreme Court overturned 6-3 her 2007 ruling in Riverkeeper v. EPA in which she found that the EPA could not consider cost-benefit analysis in judging whether companies need to upgrade to the best technology available, even when the costs were wholly disproportionate to the benefits. And in the 2006 case of Merrill Lynch v. Dabit, the Court ruled 8-0 to overturn her position that a state class-action lawsuit against Merrill Lynch was not pre-empted by federal law.
Even the best judges get overturned, of course, but the issue here is less the result than Judge Sotomayor's legal reasoning. As a lower court judge, she was restrained by a higher authority. On the Supreme Court, she is limited only by the other Justices she can win over to her arguments.
As the first nominee of a popular President and with 59 Democrats in the Senate, Judge Sotomayor is likely to be confirmed barring some major blunder. But Republicans can use the process as a teaching moment, not to tear down Ms. Sotomayor on personal issues the way the left tried with Justices Clarence Thomas and Sam Alito, but to educate Americans about the proper role of the judiciary and to explore whether Judge Sotomayor's Constitutional principles are as free-form as they seem from her record.
Empathy vs. Impartiality
When they conflict, the Supreme Court must choose the latter.
By Jonah Goldberg
Why make this complicated?
President Obama prefers Supreme Court justices who will violate their oath of office. And he hopes Sonia Sotomayor is the right Hispanic woman for the job. Here’s the oath Supreme Court justices must take:
“I, (name), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (title) under the Constitution and laws of the United States. So help me God.”
Contrast that with Obama’s insistence that the “quality of empathy, of understanding and identifying with people’s hopes and struggles” is the key qualification for a Supreme Court justice. According to White House talking points, Judge Sotomayor’s “American story” of humble origins — she was raised in the South Bronx — best prepares her for the high court because it shows “she understands that upholding the rule of law means going beyond legal theory to ensure consistent, fair, common-sense application of the law to real-world facts.”
Obama says law and precedent should determine rulings in “95 percent of the cases,” but in the really hard and important cases, justices should go with their heart. “In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
Now, keep in mind that 5 percent of Supreme Court cases isn’t everything, but it’s nearly 100 percent of what we argue about as a country. For the hard cases Americans care most about, Obama says empathy should rule.
So, what’s wrong with empathy?
Well, nothing. Empathy is a fine thing, and all decent people should employ it, including Supreme Court justices.
But Obama has something specific in mind when he talks about empathy. He wants the justice’s oath to in effect be rewritten. Judges must administer justice with respect to persons, they must be partial to the poor, and so on.
I don’t think this is open to much debate. When Obama voted against Chief Justice John Roberts’s confirmation, he said that Roberts didn’t have the “heart” to vote the right way in those 5 percent of cases. Rather than Roberts the Cruel, Obama explained, “we need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.” Cue Sotomayor the Empathic.
The reasoning here is a riot of dubious assumptions. Obama and Sotomayor both assume that a firsthand understanding of the plight of the poor or the African-American or the gay or the old will automatically result in justices voting a certain (liberal) way. “I would hope,” Sotomayor said in 2001, “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.” This is not only deeply offensive, it is also nonsense on stilts. Clarence Thomas understands what it is like to be poor and black better than any justice who has ever sat on the bench. How’s that working out for liberals?
Of course, liberals say that if you don’t agree with their policy prescriptions on, say, racial quotas or abortion, it’s because you don’t care as much as they do about minorities or women. Which is why they’ve demonized Thomas as a villainous race-traitor. This, too, is aggressively stupid. But even if it were true, why are we talking about policy preferences and the courts? Judges aren’t supposed to have policy preferences, despite Ms. Sotomayor’s insistence that the courts are “where policy is made.”
More important, who says conservatives are against judicial empathy? I, for one, am all for it. I’m for empathy for the party most deserving of justice before the Supreme Court, within the bounds of the law and Constitution. If that means siding with a poor black man, great. If that means siding with a rich white one, that’s great too. The same holds for gays and gun owners, single mothers and media conglomerates. We should all rejoice when justices fulfill their oaths and give everyone a fair hearing, even if that’s now out of fashion in the age of Obama.
When they conflict, the Supreme Court must choose the latter.
By Jonah Goldberg
Why make this complicated?
President Obama prefers Supreme Court justices who will violate their oath of office. And he hopes Sonia Sotomayor is the right Hispanic woman for the job. Here’s the oath Supreme Court justices must take:
“I, (name), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (title) under the Constitution and laws of the United States. So help me God.”
Contrast that with Obama’s insistence that the “quality of empathy, of understanding and identifying with people’s hopes and struggles” is the key qualification for a Supreme Court justice. According to White House talking points, Judge Sotomayor’s “American story” of humble origins — she was raised in the South Bronx — best prepares her for the high court because it shows “she understands that upholding the rule of law means going beyond legal theory to ensure consistent, fair, common-sense application of the law to real-world facts.”
Obama says law and precedent should determine rulings in “95 percent of the cases,” but in the really hard and important cases, justices should go with their heart. “In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
Now, keep in mind that 5 percent of Supreme Court cases isn’t everything, but it’s nearly 100 percent of what we argue about as a country. For the hard cases Americans care most about, Obama says empathy should rule.
So, what’s wrong with empathy?
Well, nothing. Empathy is a fine thing, and all decent people should employ it, including Supreme Court justices.
But Obama has something specific in mind when he talks about empathy. He wants the justice’s oath to in effect be rewritten. Judges must administer justice with respect to persons, they must be partial to the poor, and so on.
I don’t think this is open to much debate. When Obama voted against Chief Justice John Roberts’s confirmation, he said that Roberts didn’t have the “heart” to vote the right way in those 5 percent of cases. Rather than Roberts the Cruel, Obama explained, “we need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.” Cue Sotomayor the Empathic.
The reasoning here is a riot of dubious assumptions. Obama and Sotomayor both assume that a firsthand understanding of the plight of the poor or the African-American or the gay or the old will automatically result in justices voting a certain (liberal) way. “I would hope,” Sotomayor said in 2001, “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.” This is not only deeply offensive, it is also nonsense on stilts. Clarence Thomas understands what it is like to be poor and black better than any justice who has ever sat on the bench. How’s that working out for liberals?
Of course, liberals say that if you don’t agree with their policy prescriptions on, say, racial quotas or abortion, it’s because you don’t care as much as they do about minorities or women. Which is why they’ve demonized Thomas as a villainous race-traitor. This, too, is aggressively stupid. But even if it were true, why are we talking about policy preferences and the courts? Judges aren’t supposed to have policy preferences, despite Ms. Sotomayor’s insistence that the courts are “where policy is made.”
More important, who says conservatives are against judicial empathy? I, for one, am all for it. I’m for empathy for the party most deserving of justice before the Supreme Court, within the bounds of the law and Constitution. If that means siding with a poor black man, great. If that means siding with a rich white one, that’s great too. The same holds for gays and gun owners, single mothers and media conglomerates. We should all rejoice when justices fulfill their oaths and give everyone a fair hearing, even if that’s now out of fashion in the age of Obama.
topher5150
Dedicated LVC Member
that seems to be the only qualification lately.... RACE
She'll be approved.We'll see if she gets approved. Remember, this is coming from the team who keeps having people back out for "undisclosed tax reasons"
Everyone is afraid to speak critically of the first "latina" nomination to the Supreme Court.
Someone who would respect the constitution and apply it blindly without any discrimination.
Someone who wouldn't make constitutional decisions based upon selective "empathy."
fossten
Dedicated LVC Member
Someone who was actually qualified to hold such a position. Someone unlike her, who hasn't been repeatedly overturned by a higher court due to bad decisions on her part.We'll see if she gets approved. Remember, this is coming from the team who keeps having people back out for "undisclosed tax reasons"
So who would you (Cal, Foss, & Bryan) prefer to see nominated for the Bench?
Source: Obama's pick wasn't pegged to Scalia
WASHINGTON (CNN) – Contrary to conventional wisdom, President Obama was not looking for someone to balance the more flamboyant conservative firepower of Justice Antonin Scalia, according to one senior administration official involved in the process of picking, vetting and promoting the nomination of Judge Sonia Sotomayor.
He was looking for someone with the ability to win over Justice Anthony Kennedy, the crucial swing vote.
"[Obama] was very struck, when he met with her, about how thoughtful she was as a judge," says the source. "He believed she had a precise approach to cases that would be effective in winning over Kennedy when possible."
The president considered Sotomayor's opinions to be "rigorous, precise, not overly flamboyant." Reports have called her more workmanlike than visionary – a precision that impressed Obama, who is looking to turn narrow decisions his way.
As for getting Sotomayor past the Senate: A decision has been made not to go the route of picking an outside lobbyist, as Republicans often do, to play "sherpa" for the nominee. The model instead is the way the late Sen. Pat Moynihan helped shepherd Ruth Bader Ginsburg's nomination through the Senate.
This time, it's another New York senator, Chuck Schumer, who will be Sotomayor's point man. Cynthia Hogan will lead the White House legal team on this effort, making courtesy calls next week. She will joined by Susan Davies and Ron Klain.
How will Sotomayor do at the hearings? This source points out that she's "got the most experience as a judge than anyone who's been nominated for the court in 70 years." Republicans, he said, told the president to nominate someone with judicial experience, and that is what Obama did. "She is very effective face to face, and has been on the bench for 17 years," he says. "She knows how to deal with public advocates."
The source dismissed the "Latina" controversy, arguing that Sotomayor's statements about how the life experiences of a Latina woman might help her "reach a better conclusion than a white male who hasn't lived that life" don't reflect identity politics, but what she believes to be the reality of her life – that she had to work harder to get where she is today. He also notes that during the same speech, she noted that the court that decided Brown vs. Board of education was all-male, and all-white.
Not surprisingly, he argues that all of the stir — including descriptions of her as a reverse racist — is about the GOP trying to figure out how to oppose her. "They're nervous about the political consequences of opposing her," he says. "And any effort to disparage her or her professional credentials will be hard."
This source points to her "huge paper trail," and says that's what the hearings should be about. "Efforts to try and turn her into something she's not will backfire," he says.
WASHINGTON (CNN) – Contrary to conventional wisdom, President Obama was not looking for someone to balance the more flamboyant conservative firepower of Justice Antonin Scalia, according to one senior administration official involved in the process of picking, vetting and promoting the nomination of Judge Sonia Sotomayor.
He was looking for someone with the ability to win over Justice Anthony Kennedy, the crucial swing vote.
"[Obama] was very struck, when he met with her, about how thoughtful she was as a judge," says the source. "He believed she had a precise approach to cases that would be effective in winning over Kennedy when possible."
The president considered Sotomayor's opinions to be "rigorous, precise, not overly flamboyant." Reports have called her more workmanlike than visionary – a precision that impressed Obama, who is looking to turn narrow decisions his way.
As for getting Sotomayor past the Senate: A decision has been made not to go the route of picking an outside lobbyist, as Republicans often do, to play "sherpa" for the nominee. The model instead is the way the late Sen. Pat Moynihan helped shepherd Ruth Bader Ginsburg's nomination through the Senate.
This time, it's another New York senator, Chuck Schumer, who will be Sotomayor's point man. Cynthia Hogan will lead the White House legal team on this effort, making courtesy calls next week. She will joined by Susan Davies and Ron Klain.
How will Sotomayor do at the hearings? This source points out that she's "got the most experience as a judge than anyone who's been nominated for the court in 70 years." Republicans, he said, told the president to nominate someone with judicial experience, and that is what Obama did. "She is very effective face to face, and has been on the bench for 17 years," he says. "She knows how to deal with public advocates."
The source dismissed the "Latina" controversy, arguing that Sotomayor's statements about how the life experiences of a Latina woman might help her "reach a better conclusion than a white male who hasn't lived that life" don't reflect identity politics, but what she believes to be the reality of her life – that she had to work harder to get where she is today. He also notes that during the same speech, she noted that the court that decided Brown vs. Board of education was all-male, and all-white.
Not surprisingly, he argues that all of the stir — including descriptions of her as a reverse racist — is about the GOP trying to figure out how to oppose her. "They're nervous about the political consequences of opposing her," he says. "And any effort to disparage her or her professional credentials will be hard."
This source points to her "huge paper trail," and says that's what the hearings should be about. "Efforts to try and turn her into something she's not will backfire," he says.
Frogman
Dedicated LVC Member
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Ok.. Empathy? In a judge? Really? That don't sound (blind) impartial to me.
Exactly!
I FEEL YOUR PAIN. NOT THEIRS. YOURS.
God save us from liberal "empathy." After President Barack Obama announced his empathetic Supreme Court nominee this week, Judge Sonia Sotomayor, we found out that some people are more deserving of empathy than others.
For example, Judge Sotomayor apparently "empathized" more with New Haven, Conn., government officials than with white and Hispanic firefighters who were denied promotions by the city on the basis of their race.
Let's hope she's as empathetic to New Haven residents who die in fires fought by inferior firefighters as a result of her decision.
In the now-famous firefighters' case, Ricci v. DeStefano, the New Haven Fire Department administered a civil service exam to choose a new batch of lieutenants and captains. The city went so far as to hire an outside consultant to design the test in order to ensure that it was job-related and not racially biased. (You know, just like all written tests were pre-screened for racial bias back when we were in school.)
But when the results came in, only whites and Hispanics scored high enough to earn promotions.
Such results never entice Democrats to reconsider their undying devotion to the teachers' unions that routinely produce students who can't read, write or do basic math. Obviously, disadvantaged children from single-parent homes suffer the most from inadequate public schools -- and their tragic outcome bedevils the entire society for the rest of the students' lives.
Instead, Democrats hide the failure of government schools by punishing the high-scoring whites, Asians and Hispanics, who presumably learned everything they know at home. (If only successfully applying a condom were relevant to firefighting, public school graduates raised in single-parent homes would crush the home-learners!)
So naturally, New Haven city officials decided to scrap the exam results and promote no one.
Seventeen of the high-scoring whites and one high-scoring Hispanic sued the mayor, John DeStefano, and other city officials for denying them promotions solely because of their race.
The district court ruled that there was no race discrimination because the low-scoring blacks were not given promotions either -- citing the landmark case, One Bad Apple v. The Rest of the Barrel. (That's the sort of sophistry we're taught in law school.)
Concerned that Sotomayor's famed "empathy" might not shine through in cases such as Ricci v. DeStefano, the Democrats are claiming -- as Obama spokesman Robert Gibbs said on MSNBC -- that she was merely applying "precedent" to decide the case. You know, just like conservatives say judges should.
This was an interesting claim, in the sense that it was the exact polar opposite of the truth.
To be sure, there is "precedent" for racial discrimination by the government, but Plessy v. Ferguson was overturned in 1954 by Brown v. Board of Education. If Sotomayor had another case in mind, she wasn't telling: The lower court's dismissal of the firefighters' case was upheld by Sotomayor and two other judges in an unsigned, unpublished opinion, titled, "Talk to the Hand."
Not only that, but Sotomayor's fellow Clinton appointee, Jose Cabranes (who sounds like an "empathetic" fellow), issued a blistering dissent from the appellate court's denial of a rehearing specifically on the grounds that the case "raises important questions of first impression in our Circuit -- and indeed, in the nation."
A "case of first impression" means there's no precedent. If there were a precedent, it would be a case of, at least, "second impression."
If it were merely "empathy" that explained liberal judges' lawless opinions, one might expect some liberal judges to have empathy for the white and Hispanic firefighters being discriminated against today, and others to have empathy for the hypothetical black firefighters discriminated against in times past.
But all liberals only have empathy for the exact same victims -- always the ones that are represented by powerful liberal interest groups. As Joe Sobran says, it takes a lot of clout to be a victim.
Thus, the media and Democrats seem to find successful Hispanic attorney Sotomayor much more "empathetic" than successful Hispanic attorney Miguel Estrada.
After aggressively blocking Estrada's nomination to a federal appeals court during Bush's first term solely on the grounds that he is Hispanic and was likely headed for the Supreme Court -- according to Senate Democrat staff memos -- now Democrats have the audacity to rave that Sotomayor will be the first Hispanic Supreme Court justice!
If Sotomayor is not more empathetic than Estrada, liberals at least consider her more Hispanic -- an interesting conclusion inasmuch as Sotomayor was born in New York and Estrada was born in Honduras.
Forty-four of 48 Senate Democrats voted to filibuster Estrada's nomination to the D.C. Circuit Court of Appeals, with congressman and professional Hispanic Raul Grijalva assuring them that just because "he happens to be named 'Estrada' does not give him a free ride."
The truth is liberals couldn't care less about Sotomayor being Hispanic. Indeed, liberals often have trouble telling Hispanic people apart, as James Carville illustrated on "Good Morning America" Wednesday morning when he kept confusing Miguel Estrada with Alberto Gonzales.
"Empathy," in Liberalspeak, is nothing but raw political power.
COPYRIGHT 2009 ANN COULTER
God save us from liberal "empathy." After President Barack Obama announced his empathetic Supreme Court nominee this week, Judge Sonia Sotomayor, we found out that some people are more deserving of empathy than others.
For example, Judge Sotomayor apparently "empathized" more with New Haven, Conn., government officials than with white and Hispanic firefighters who were denied promotions by the city on the basis of their race.
Let's hope she's as empathetic to New Haven residents who die in fires fought by inferior firefighters as a result of her decision.
In the now-famous firefighters' case, Ricci v. DeStefano, the New Haven Fire Department administered a civil service exam to choose a new batch of lieutenants and captains. The city went so far as to hire an outside consultant to design the test in order to ensure that it was job-related and not racially biased. (You know, just like all written tests were pre-screened for racial bias back when we were in school.)
But when the results came in, only whites and Hispanics scored high enough to earn promotions.
Such results never entice Democrats to reconsider their undying devotion to the teachers' unions that routinely produce students who can't read, write or do basic math. Obviously, disadvantaged children from single-parent homes suffer the most from inadequate public schools -- and their tragic outcome bedevils the entire society for the rest of the students' lives.
Instead, Democrats hide the failure of government schools by punishing the high-scoring whites, Asians and Hispanics, who presumably learned everything they know at home. (If only successfully applying a condom were relevant to firefighting, public school graduates raised in single-parent homes would crush the home-learners!)
So naturally, New Haven city officials decided to scrap the exam results and promote no one.
Seventeen of the high-scoring whites and one high-scoring Hispanic sued the mayor, John DeStefano, and other city officials for denying them promotions solely because of their race.
The district court ruled that there was no race discrimination because the low-scoring blacks were not given promotions either -- citing the landmark case, One Bad Apple v. The Rest of the Barrel. (That's the sort of sophistry we're taught in law school.)
Concerned that Sotomayor's famed "empathy" might not shine through in cases such as Ricci v. DeStefano, the Democrats are claiming -- as Obama spokesman Robert Gibbs said on MSNBC -- that she was merely applying "precedent" to decide the case. You know, just like conservatives say judges should.
This was an interesting claim, in the sense that it was the exact polar opposite of the truth.
To be sure, there is "precedent" for racial discrimination by the government, but Plessy v. Ferguson was overturned in 1954 by Brown v. Board of Education. If Sotomayor had another case in mind, she wasn't telling: The lower court's dismissal of the firefighters' case was upheld by Sotomayor and two other judges in an unsigned, unpublished opinion, titled, "Talk to the Hand."
Not only that, but Sotomayor's fellow Clinton appointee, Jose Cabranes (who sounds like an "empathetic" fellow), issued a blistering dissent from the appellate court's denial of a rehearing specifically on the grounds that the case "raises important questions of first impression in our Circuit -- and indeed, in the nation."
A "case of first impression" means there's no precedent. If there were a precedent, it would be a case of, at least, "second impression."
If it were merely "empathy" that explained liberal judges' lawless opinions, one might expect some liberal judges to have empathy for the white and Hispanic firefighters being discriminated against today, and others to have empathy for the hypothetical black firefighters discriminated against in times past.
But all liberals only have empathy for the exact same victims -- always the ones that are represented by powerful liberal interest groups. As Joe Sobran says, it takes a lot of clout to be a victim.
Thus, the media and Democrats seem to find successful Hispanic attorney Sotomayor much more "empathetic" than successful Hispanic attorney Miguel Estrada.
After aggressively blocking Estrada's nomination to a federal appeals court during Bush's first term solely on the grounds that he is Hispanic and was likely headed for the Supreme Court -- according to Senate Democrat staff memos -- now Democrats have the audacity to rave that Sotomayor will be the first Hispanic Supreme Court justice!
If Sotomayor is not more empathetic than Estrada, liberals at least consider her more Hispanic -- an interesting conclusion inasmuch as Sotomayor was born in New York and Estrada was born in Honduras.
Forty-four of 48 Senate Democrats voted to filibuster Estrada's nomination to the D.C. Circuit Court of Appeals, with congressman and professional Hispanic Raul Grijalva assuring them that just because "he happens to be named 'Estrada' does not give him a free ride."
The truth is liberals couldn't care less about Sotomayor being Hispanic. Indeed, liberals often have trouble telling Hispanic people apart, as James Carville illustrated on "Good Morning America" Wednesday morning when he kept confusing Miguel Estrada with Alberto Gonzales.
"Empathy," in Liberalspeak, is nothing but raw political power.
COPYRIGHT 2009 ANN COULTER
Judge Sotomayor's 'reverse empathy'
by David Limbaugh
True to form, President Barack Obama – in his remarks introducing his Supreme Court nominee, Judge Sonia Sotomayor – said he was doing one thing while doing the exact opposite. He articulated his criteria for the optimal nominee yet chose someone who falls squarely outside those criteria – as best we can tell.
But what's all the fuss? A foolish consistency is the hobgoblin of little conservative minds. Obama's mesmerized audiences are not supposed to pay attention to the meaning and context of his words, only to their aesthetic appeal and to the tonal qualities and modulation in his voice.
Obama said a Supreme Court nominee's two most important qualities are her rigorous intellect and mastery of the law and her recognition of the limits of the judicial role – that a judge's job is to interpret law, not to make it.
Then came the "but," the exception that imperceptibly swallowed the rule. He quoted former Justice Oliver Wendell Holmes as saying, "The life of the law has not been logic; it has been experience." In other words: "Forget what I just said about how judges should interpret, not make, the law. I want my judges to have empathy. And don't tell anyone, but when I say 'empathy,' that's code for bending the law to achieve the results I want based on the selective empathy I have for certain victimized groups."
Before you fall for the upcoming protests that Sotomayor truly is a practitioner of judicial restraint, you might want to examine her record, including the case of Ricci v. DeStefano.
Frank Ricci is a dyslexic Connecticut firefighter who quit a second job in order to study up to 13 hours a day and paid someone to read his textbooks onto tape in preparation for the New Haven Fire Department's exam for promotion to lieutenant or captain. Though he received the sixth-highest score out of 77 applicants vying for eight vacancies, the city decided to deny him (and all other applicants) his earned promotion because no black applicants passed, even though the exam had been carefully constructed to ensure race neutrality.
Ricci was among 18 candidates – 17 whites and one Hispanic – who sued the city of New Haven for racial discrimination. The district judge issued summary judgment against the plaintiffs. On appeal to the 2nd U.S. Circuit Court of Appeals, Judge Sotomayor was one of three judges on the panel who issued a per curiam opinion (adopting the full reasoning of the district court without elaboration) affirming the district court's ruling.
The plaintiffs failed to achieve an en banc (entire court) rehearing of the appeal, but not without a strongly critical dissenting opinion from one of Sotomayor's fellow Clinton appointees on the court, Judge Jose Cabranes.
Cabranes noted that it was highly unusual for the panel to have issued a per curiam opinion, because the questions raised on appeal were "indisputably complex and far from well-settled." He wrote, "The core issue presented by this case – the scope of a municipal employer's authority to disregard examination results based solely on the race of the successful applicants – is not addressed by any precedent of the Supreme Court or our Circuit. … What is not arguable … is … that this Court has failed to grapple with the questions of exceptional importance raised in this appeal."
Sotomayor and her like-minded colleagues not only highhandedly denied justice to the aggrieved firefighters in this case but also tried to bury their injustice in their summary affirmation of the district court's ruling, something that obviously troubled Judge Cabranes. This is judicial activism at its most egregious and least transparent, when judges disregard the law to achieve the result they prefer and attempt to conceal their actions.
Again, this is what Barack Obama obviously has in mind when he discusses "empathy." In Ricci v. DeStefano, Sotomayor's empathy was for those who weren't aggrieved – call it "reverse empathy" – and she just didn't have any left for the poor saps who worked their tails off to earn their promotions – just as Obama doesn't have any left for mortgage debtors who honor their obligations.
While defenders of Sotomayor will argue that she didn't engage in judicial reverse discrimination in this case, the facts yell otherwise. But if you're still in doubt that she would base her rulings on her personal feelings, be aware that in a speech at Berkeley in 2002, she said it's perfectly acceptable for judges to consider their "experiences as women and people of color" in making their decisions.
Also readily available (on YouTube) is videotape of her saying – before remembering her comments were being taped and then feigning to backtrack – that "the Court of Appeals is where policy is made."
Senate Republicans must take a stand and vocally oppose this nomination, not on the basis of partisan politics, but in defense of the rule of law and the proper role of the judiciary, principles the president is only pretending to honor.
by David Limbaugh
True to form, President Barack Obama – in his remarks introducing his Supreme Court nominee, Judge Sonia Sotomayor – said he was doing one thing while doing the exact opposite. He articulated his criteria for the optimal nominee yet chose someone who falls squarely outside those criteria – as best we can tell.
But what's all the fuss? A foolish consistency is the hobgoblin of little conservative minds. Obama's mesmerized audiences are not supposed to pay attention to the meaning and context of his words, only to their aesthetic appeal and to the tonal qualities and modulation in his voice.
Obama said a Supreme Court nominee's two most important qualities are her rigorous intellect and mastery of the law and her recognition of the limits of the judicial role – that a judge's job is to interpret law, not to make it.
Then came the "but," the exception that imperceptibly swallowed the rule. He quoted former Justice Oliver Wendell Holmes as saying, "The life of the law has not been logic; it has been experience." In other words: "Forget what I just said about how judges should interpret, not make, the law. I want my judges to have empathy. And don't tell anyone, but when I say 'empathy,' that's code for bending the law to achieve the results I want based on the selective empathy I have for certain victimized groups."
Before you fall for the upcoming protests that Sotomayor truly is a practitioner of judicial restraint, you might want to examine her record, including the case of Ricci v. DeStefano.
Frank Ricci is a dyslexic Connecticut firefighter who quit a second job in order to study up to 13 hours a day and paid someone to read his textbooks onto tape in preparation for the New Haven Fire Department's exam for promotion to lieutenant or captain. Though he received the sixth-highest score out of 77 applicants vying for eight vacancies, the city decided to deny him (and all other applicants) his earned promotion because no black applicants passed, even though the exam had been carefully constructed to ensure race neutrality.
Ricci was among 18 candidates – 17 whites and one Hispanic – who sued the city of New Haven for racial discrimination. The district judge issued summary judgment against the plaintiffs. On appeal to the 2nd U.S. Circuit Court of Appeals, Judge Sotomayor was one of three judges on the panel who issued a per curiam opinion (adopting the full reasoning of the district court without elaboration) affirming the district court's ruling.
The plaintiffs failed to achieve an en banc (entire court) rehearing of the appeal, but not without a strongly critical dissenting opinion from one of Sotomayor's fellow Clinton appointees on the court, Judge Jose Cabranes.
Cabranes noted that it was highly unusual for the panel to have issued a per curiam opinion, because the questions raised on appeal were "indisputably complex and far from well-settled." He wrote, "The core issue presented by this case – the scope of a municipal employer's authority to disregard examination results based solely on the race of the successful applicants – is not addressed by any precedent of the Supreme Court or our Circuit. … What is not arguable … is … that this Court has failed to grapple with the questions of exceptional importance raised in this appeal."
Sotomayor and her like-minded colleagues not only highhandedly denied justice to the aggrieved firefighters in this case but also tried to bury their injustice in their summary affirmation of the district court's ruling, something that obviously troubled Judge Cabranes. This is judicial activism at its most egregious and least transparent, when judges disregard the law to achieve the result they prefer and attempt to conceal their actions.
Again, this is what Barack Obama obviously has in mind when he discusses "empathy." In Ricci v. DeStefano, Sotomayor's empathy was for those who weren't aggrieved – call it "reverse empathy" – and she just didn't have any left for the poor saps who worked their tails off to earn their promotions – just as Obama doesn't have any left for mortgage debtors who honor their obligations.
While defenders of Sotomayor will argue that she didn't engage in judicial reverse discrimination in this case, the facts yell otherwise. But if you're still in doubt that she would base her rulings on her personal feelings, be aware that in a speech at Berkeley in 2002, she said it's perfectly acceptable for judges to consider their "experiences as women and people of color" in making their decisions.
Also readily available (on YouTube) is videotape of her saying – before remembering her comments were being taped and then feigning to backtrack – that "the Court of Appeals is where policy is made."
Senate Republicans must take a stand and vocally oppose this nomination, not on the basis of partisan politics, but in defense of the rule of law and the proper role of the judiciary, principles the president is only pretending to honor.
In 2003, Miguel Estrada Was Dismissed As Bush 'Affirmative Action Candidate'
By Tim Graham
The nomination of a Hispanic for the Supreme Court will remind conservatives of the case of Miguel Estrada, a promising Hispanic conservative that the Democrats filibustered -- at the circuit court level -- and in 2003, Estrada gave up the battle.
Here’s one priceless exchange from ABC’s This Week on February 9, 2003, with an ABC reporter now working as a talk-show host on National Public Radio:
By Tim Graham
The nomination of a Hispanic for the Supreme Court will remind conservatives of the case of Miguel Estrada, a promising Hispanic conservative that the Democrats filibustered -- at the circuit court level -- and in 2003, Estrada gave up the battle.
Here’s one priceless exchange from ABC’s This Week on February 9, 2003, with an ABC reporter now working as a talk-show host on National Public Radio:
MICHEL MARTIN: Miguel Estrada is a very promising young lawyer who went to some excellent schools, had excellent clerkships, has a good work record. What he lacks in judicial background he makes up with a compelling life story....And you know what that’s called George? Affirmative action. He is an affirmative action candidate as practiced by the Republican Party and the conservative movement....
GEORGE WILL: Michel, affirmative action, in the Michigan style, would be to give Estrada 20 extra points. He didn’t get that. He got the highest possible rating by the ABA.
Back in 2003, I wrote up the Estrada case for a Media Reality Check:GEORGE WILL: Michel, affirmative action, in the Michigan style, would be to give Estrada 20 extra points. He didn’t get that. He got the highest possible rating by the ABA.
On May 9, 2001, President Bush nominated his first batch of nominees to the federal circuit courts in an East Room ceremony. One of the nominees standing on the risers was Miguel Estrada. Liberal groups quickly decided to fight this 41-year-old Honduran immigrant tooth and nail. People for the American Way thought they were insulting him by calling him the "Latino Clarence Thomas."
Today, the Senate failed to end the Democratic filibuster of Estrada by a vote of 55 to 44 (60 votes are needed to end debate). He could be confirmed (Thomas had 52 votes in 1991), but liberal Democrats won’t allow it. Like Thomas, the hostility isn’t because he’s a minority – it’s because he’s a conservative minority, a threat to the notion that minorities should only think and vote Democratic.
This historic filibuster began a month ago. It’s the first time a cloture vote has denied a judicial nominee below the Supreme Court level. In 1968, the Senate filibustered ethically challenged Supreme Court justice Abe Fortas when Lyndon Johnson nominated him as chief justice in 1968. But ABC’s and CBS’s daily morning and evening news shows haven’t done a single story on the Estrada battle in the last two years. ABC’s This Week has covered it.
NBC Nightly News aired one story, on February 26, the day President Bush welcomed Latino activists to the White House to press for Estrada’s confirmation. Reporter Norah O’Donnell used soundbites from Brent Wilkes, "director of the nation’s largest Latino advocacy group," LULAC, calling the fight "unfortunate," but did not mention that the group endorsed Estrada. O’Donnell explained Democrats "don’t dispute Estrada’s qualifications, but argue he’s too conservative for what some consider the second-highest court in the land." She did not explain that Estrada was unanimously declared "well-qualified" by the liberal American Bar Association. She did say Democrats were "angry Estrada stonewalled them at the confirmation hearings." NBC carried one sentence from Estrada: "I don’t know that I’m in a position to say that I disagree with any case that the Supreme Court has ruled on."
National Review reporter Byron York has reported that the White House sent a letter to all 100 Senators asking for questions to Estrada, and promised he would answer by this week. None of the Senators sent questions.
Today, the Senate failed to end the Democratic filibuster of Estrada by a vote of 55 to 44 (60 votes are needed to end debate). He could be confirmed (Thomas had 52 votes in 1991), but liberal Democrats won’t allow it. Like Thomas, the hostility isn’t because he’s a minority – it’s because he’s a conservative minority, a threat to the notion that minorities should only think and vote Democratic.
This historic filibuster began a month ago. It’s the first time a cloture vote has denied a judicial nominee below the Supreme Court level. In 1968, the Senate filibustered ethically challenged Supreme Court justice Abe Fortas when Lyndon Johnson nominated him as chief justice in 1968. But ABC’s and CBS’s daily morning and evening news shows haven’t done a single story on the Estrada battle in the last two years. ABC’s This Week has covered it.
NBC Nightly News aired one story, on February 26, the day President Bush welcomed Latino activists to the White House to press for Estrada’s confirmation. Reporter Norah O’Donnell used soundbites from Brent Wilkes, "director of the nation’s largest Latino advocacy group," LULAC, calling the fight "unfortunate," but did not mention that the group endorsed Estrada. O’Donnell explained Democrats "don’t dispute Estrada’s qualifications, but argue he’s too conservative for what some consider the second-highest court in the land." She did not explain that Estrada was unanimously declared "well-qualified" by the liberal American Bar Association. She did say Democrats were "angry Estrada stonewalled them at the confirmation hearings." NBC carried one sentence from Estrada: "I don’t know that I’m in a position to say that I disagree with any case that the Supreme Court has ruled on."
National Review reporter Byron York has reported that the White House sent a letter to all 100 Senators asking for questions to Estrada, and promised he would answer by this week. None of the Senators sent questions.
luxuryrules
Dedicated LVC Member
I try to take the discussion in more positive direction, and we can't seem to get away from criticizing Sotomayor.
Do we have any names?
Frogman
Dedicated LVC Member
- Joined
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Isn't she pro life?
Curious how that will go over with your guys' Liberal friends.
Curious how that will go over with your guys' Liberal friends.
fossten
Dedicated LVC Member
Does it not concern you that she's a racist who has been overturned five times?
Frogman, she's not necessarily pro life, she just has no abortion record.
fossten
Dedicated LVC Member
Watch this very carefully, especially the very end.
http://www.youtube.com/watch?v=x-qyO5aeYfg&feature
http://www.youtube.com/watch?v=x-qyO5aeYfg&feature
Why is it necessary to avoid commenting on the woman being given a lifetime appointment to the Supreme Court?
Yeah. Mark Levin. Obama should have appointed him.
Or ANY judge in the federalist society.
Sotomayor’s Damned Statistics
“There are lies, damned lies, and statistics.” So it is said. We now have reached stage three of the Sotomayor debate, because we are into statistical analysis of her opinions and dissents.
First, some backdrop on statistics as relates to Supreme Court nominees. During the confirmation process for Samuel Alito, then law professor Cass Sunstein did a statistical analysis of Alito’s dissents at the request of Ted Kennedy. The analysis was filled with qualifications and caveats cautioning about reading too much into statistical analysis of judicial opinions. Here is Sunstein’s punch line:
But to use Ted Kennedy’s interpretation of statistics for Samuel Alito, one also could conclude that Sotomayor is hostile to minorities and racial discrimination claims. Hogwash. There is nothing in Sotomayor’s background to suggest such hostility, which simply proves the point that these sort of statistics are meaningless.
The other interesting aspect of Goldstein’s analysis is how he treats dissents. By focusing on majority opinions, Goldstein is going against Sunstein’s admonition as to Alito that majority opinions are not particularly meaningful for statistical purposes. Whereas Sunstein focused on Alito’s dissents, Goldstein focuses on Sotomayor’s concurrences.
Perhaps Goldstein focused on Sotomayor’s majority opinions because Sotomayor had so few dissents in the subject-area, meaning that she voted with her co-panelists almost all the time:
Needless to say, Goldstein’s analysis of Sotomayor’s opinions is being spun as “plainly provid[ing] the best evidence of the kind of judge she will be” or ” fairly convincing evidence.” Wrong. Statistical aggregation of judicial opinions certainly is part of the evidence, but not conclusive, for all of the reasons and caveats set forth in the Sunstein analysis of Samuel Alito. The actual opinions, not the statistics, tell us much more about the candidate.
The emptiness of statistical analysis of judicial opinions also highlights the need to really understand who a nominee is, what philosophy she brings to the table, and what nods and winks (if any) have been conveyed to the nominating President. I’d much rather see the internal White House memos and e-mails about Sotomayor than spend my days with illusory damned statistics.
If we knew as much about Sotomayor as the President nominating her, we could make a better-informed decision, and would not be reduced to reading judicial tea leaves.
UPDATE: Some more on the limitations of judicial data mining, circa 2005 (Alito):
“There are lies, damned lies, and statistics.” So it is said. We now have reached stage three of the Sotomayor debate, because we are into statistical analysis of her opinions and dissents.
First, some backdrop on statistics as relates to Supreme Court nominees. During the confirmation process for Samuel Alito, then law professor Cass Sunstein did a statistical analysis of Alito’s dissents at the request of Ted Kennedy. The analysis was filled with qualifications and caveats cautioning about reading too much into statistical analysis of judicial opinions. Here is Sunstein’s punch line:
But to make that story short and simple: When there is a conflict between institutions and individual rights, Judge Alito’s dissenting opinions argue against individual rights 84% of the time. In almost all of the cases in which Judge Alito dissented in order to reject individual rights claim, he was sitting on a court with a majority of Republican appointees. A summary statistic of this kind must be taken with many grains of salt and with appropriate qualifications; let me now add a sense of context and a few complexities.
Among the difficulties of assessing voting records even for dissenting opinions, Sunstein noted, is that the opinions need to be “coded” to assess whether the vote is for or against “individual rights” and the one thing which does not enter into the analysis is whether Alito was correct as to the law:An additional way of evaluating these dissenting opinions is less statistical; it involves an assessment of their merits and their relationship to preexisting law. Any such assessment will, of course, involve a high degree of discretion. But a preliminary analysis suggests two points. First, Judge Alito’s opinions are carefully reasoned, well-done, attentive to law, lawyerly, and unfailingly respectful to his colleagues. Second, it is fair to say that he has often dissented, in a way that rejects individual rights claims, even though the law, fairly interpreted, could well be taken to support those claims. Hence he has exercised his own discretion, not lawlessly but in a way that helps to illuminate his general approach to the law.
Sunstein went on in the letter to explain that while analysis of dissents may have some value, the analysis of majority opinions has little value as a predictor of how a Supreme Court Justice would vote once elevated to the Supreme Court:Judge Robert Bork, for example, was in agreement on the D.C. Circuit with then-Judge Ruth Bader Ginsburg about 91% of the time – which did not suggest that they would vote in the same way on the Supreme Court! An important question for inquiry would have been the other 9%.
In plain English, Sunstein’s attempt to statistically categorize dissenting opinions was full of caveats, assumptions, and value judgments rendering any such assessment political garbarge. Not surprisingly, Ted Kennedy (who invented Borking) took Sunstein’s analysis, without mentioning the limitations and caveats, to argue that Alito would be hostile to individuals:“In an era when too many Americans are losing their jobs, or working for less and trying to make ends meet, in close cases Judge Alito has ruled the vast majority of the time against the claims of individual citizens,” Kennedy said. “He has acted instead in favor of the government, large corporations, and other powerful interests. In a study by a well-respected expert, Professor Cass Sunstein of the University of Chicago Law School, Judge Alito was found to rule against the individual in 84 percent of his dissents. To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom.”
Statistical noise now has entered the Sotomayor debate in her defense. At SCOTUS Blog, Tom Goldstein has read each of the race-related decisions in which Sotomayor participated, and finds as follows (italics mine):Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.
Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.
Goldstein’s analysis clearly is well-intentioned, but also subject to differing interpretations. One interpretation, advanced by Goldstein, is that the statistics show that “it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.”Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.
But to use Ted Kennedy’s interpretation of statistics for Samuel Alito, one also could conclude that Sotomayor is hostile to minorities and racial discrimination claims. Hogwash. There is nothing in Sotomayor’s background to suggest such hostility, which simply proves the point that these sort of statistics are meaningless.
The other interesting aspect of Goldstein’s analysis is how he treats dissents. By focusing on majority opinions, Goldstein is going against Sunstein’s admonition as to Alito that majority opinions are not particularly meaningful for statistical purposes. Whereas Sunstein focused on Alito’s dissents, Goldstein focuses on Sotomayor’s concurrences.
Perhaps Goldstein focused on Sotomayor’s majority opinions because Sotomayor had so few dissents in the subject-area, meaning that she voted with her co-panelists almost all the time:
In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times.
Goldstein treats the existence of a dissent as a “fair measure” of whether a judge is an “outlier,” but that is not necessarily so. Does the lack of dissenting opinions mean that Sotomayor is in the mainstream? Maybe. Does it mean that she does not show judicial independence of thought? Maybe. Does it mean nothing? Maybe.Needless to say, Goldstein’s analysis of Sotomayor’s opinions is being spun as “plainly provid[ing] the best evidence of the kind of judge she will be” or ” fairly convincing evidence.” Wrong. Statistical aggregation of judicial opinions certainly is part of the evidence, but not conclusive, for all of the reasons and caveats set forth in the Sunstein analysis of Samuel Alito. The actual opinions, not the statistics, tell us much more about the candidate.
The emptiness of statistical analysis of judicial opinions also highlights the need to really understand who a nominee is, what philosophy she brings to the table, and what nods and winks (if any) have been conveyed to the nominating President. I’d much rather see the internal White House memos and e-mails about Sotomayor than spend my days with illusory damned statistics.
If we knew as much about Sotomayor as the President nominating her, we could make a better-informed decision, and would not be reduced to reading judicial tea leaves.
UPDATE: Some more on the limitations of judicial data mining, circa 2005 (Alito):
- When Alito Is Unbound: On Mining Judge Alito’s Judicial Record: "But when a judge is transformed to justice, all of a sudden Supreme Court precedent becomes much less sacred. Justices can bend and twist the precedent; they can overrule cases; they can radically alter the direction of the law. What happens when an appellate judge is unshackled in this way?"
The Court's Dynamics Have a Way of Altering a Justice's Approach to the Law: "Lower court records can actually provide disinformation about a nominee's true preferences. Judges on lower courts, after all, are bound by Supreme Court precedent, and that constraint may explain why Souter -- thought to be moderately conservative as a state and federal appellate court judge -- emerged as liberal once on the high court. The Supreme Court that Judge Souter was bound to follow was somewhat conservative or, at least to the right of Souter's actual preferences. While Supreme Court nominees "respect" precedent, as they unfailingly tell the Senate Judiciary Committee, once elevated they are not compelled to follow it. Freed from that constraint, the "real" Souter came into view." - Reacting to claims by Yale Law Professor Bruce Ackerman and a group called "Law Students Againt Alito" (which eventually produced this statistical analysis) that Alito was a "judicial radical": "There is nothing "radical" or "too" steadfastly conservative about Alito; there is nothing remarkable, illegitimate, or extremist about his approach; there is nothing particularly surprising about any of the results he has reached or about any of the opinions he has written. His work is the work of a careful, conscientious, very smart, "conservative."
- More on the Yale Law School effort against Alito: "The most preposterous thing is that anyone should think the faculty of the Yale Law School is particularly qualified to judge whether Alito would make a good Supreme Court Justice or not. Whether they intended to or not, their (for those who spoke seemed to speak for Yale) disgraceful behavior in both the Bork and Thomas nominations makes it obvious that they are just carrying water for the political left. I suppose someone has to do it, but it ain't law."
- My thought (to be followed eventually by a post): Where are all the law professors doing a critical analysis of Sotomayor's writings, as happened with Alito? Is there a groupthink going on, is she so perfect that there is no legitimate criticism, or are they afraid to speak out?
- The Daily Dish ("The NYT is touting this as the now-central line of criticism. Tom Goldstein has actually looked at the record. It seems as if the critics should try another tack");
- DailyKOS (Tom Goldstein does something novel over at SCOTUSblog and actually looks at Sonia Sotomayor's record);
- Crooks and Liars ("On race, SCOTUSblog examines the record and says it's "absurd to say that Judge Sotomayor allows race to infect her decisionmaking"")
"Now, this doesn't tell us much. Each case should be examined individually, on the merits, because what really matters is not whether she rejected discrimination claims but whether she was right to reject them."