I really did predict that Obama would pick Judge Sotomayor, although I didn't publish it. Her name had been raised as a front runner, and she hits multiple symbolic criteria (if there's one thing Obama knows, it's symbolism). She would be the first Latin-American (and first such female) on the Supreme Court. [Some would argue Benjamin N. Cardozo, an FDR appointee, is, but he is of Portuguese descent; not from Spain or from the Spanish or (Brazilian) Portuguese-speaking peoples of the Americas. The term "Hispanic" refers to Spanish-speaking people, i.e., from Spain or the Americas, which does not fit Cardozo's background. Hence, Sotomayor would also be the first Hispanic-American; it should be noted that many Latin Americans consider the term "Hispanic American" a cultural insult, and Sotomayor refers to herself as a Latina.] She was diagnosed with diabetes at a young age and grew up in the South Bronx public housing; this dovetails nicely with Obama's famously obscure non-Constitutional criterion of "empathy". In certain ways, Sotomayor's story parallels Obama's: she grew up in a single-parent home after her father died and attended Ivy League colleges for her degrees (Princeton and then Yale Law School). Her Princeton graduation with honors (summa cum laude) attests to her high intelligence.
Judge Sotomayor is clearly qualified, with 11 years on the appeals court. But, of course, Obama himself regarded competence and qualifications not to be salient characteristics when he voted against both Chief Justice Roberts and Justice Alito (whom he also supported filibustering). Sotomayor is going to draw some Republican conservative opposition, for some notorious quotations. Back in 2001 at an annual diversity lecture, the judge said, "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." At a February 2005 forum at Duke University, she said, "The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK." A third example, from a 2002 speech reported by the Associated Press, said, "I simply do not know exactly what the difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage."
The first quotation suggests a reverse racist bias and a rather self-serving one at that, one that seriously calls into question her ability to judge fairly equal protection issues. In particular, one topic which will come up in her confirmation issues is the Ricci v. DeStefano case, which is pending after April arguments before the Supreme Court, over Sotomayor's vote, among others, to summarily dismiss. This case involved a competitive New Haven firefighter exam for promotions designed by a well-known testing company specifically to address any cultural bias concerns. No minority candidates reached the promotion cutoff, and New Haven, based solely on the racial breakout of exam results, threw out the exam results, including the white candidates whom had worked and studied hard to take the exam, including Ricci, whom had overcome the effects of dyslexia to place in the top 10. Dismissing the results of an exam simply because of racial distribution seems to be the logical equivalent of maintaining an unconstitutional racial quota for promotions. The Supreme Court has maintained on multiple occasions that colleges cannot use racial quotas, and Sotomayor's failure to address this clearly relevant precedent seems to suggest she has a hidden policy agenda.
The second quote is red meat for conservatives, whom have long insisted that the role of judges is to interpret the law strictly, not to make policy, which is address by the other branches of government.
Another potential source of criticisms of Judge Sotomayor is a recent (May 4) New Republic post written by Jeffry Rosen, "The Case Against Sotomayor". Rosen claims to have contacted a number of former or current judges, prosecutors and/or law clerks, most of whom are Democrats. There were rumors that Obama had been seeking a liberal with the intellectual prowess to counterbalance Justice Scalia and a consensus builder, and the feedback Rosen heard seems to suggest that Sotomayor doesn't measure up to those expectations. Some have questioned her judicial performance: her inflated ego and temperament from the bench (e.g., annoying her colleagues or bullying counsel), her uneven judicial analyses, and unfocused questioning from the bench, opinions and memos (inability to cut to the chase or to prioritize issues in terms of judicial substance, missing the forest for the trees, evaluating drafts more on surface-level details (e.g., misspellings) vs. substance, etc.)
Another common judicial performance criterion is reversibility of opinions (with sustained judgments being the preferred outcome). One source says that she's been reversed on 3 on 6 opinions ruled on by the Supreme Court (and probably will be reversed on the Ricci case), which is not regarded as a particularly impressive average.
Barring something unexpected and damaging, I expect that Sotomayor will not be filibustered and will ultimately be confirmed. I seriously doubt that the Maine senators, Senator Hatch or Senator Lindsey Graham would agree to filibuster this nominee, and a GOP filibuster of the first Latina nomination would not go over well, given an already strained relationship over opposition to immigration reform. It is important that any disagreement over Judge Sotomayor's nomination be made respectfully. My personal intuitive guess, unless something unexpected surfaces, is that Sotomayor will win 75 to 80 votes, somewhat analogous to her confirmation to the Court of Appeals where she won about half of the GOP votes.
As for me, I wish that Sonia Sotomayor's record as an appeals justice was as inspiring as her life story. Although I find her qualified, I think her opinion reverses, her unconscionable attempt to bury the Ricci case, and her Biden-like tendency for judicial activist gaffes do not reflect the kind of performance I want to see in a Supreme Court judge, and I recommend her rejection and replacement by a more suitable candidate.
Obama's Comments
Obama, as usual, came out this morning, anticipating objections and denying the obvious, saying she will not legislate from the bench. The quotes stand on their own; even though she tried to take back what she said after she said it (which was a patently transparent attempt of damage control); even if you claim it was a slip of the tongue, you would think any reasonable judge should have been better disciplined to think before she talks.
However, the fact that he's stressing her personal story, impressive as it is, even after affirming she has the broadest legal exposure of any Supreme Court justice, implies Obama explicitly included a factor that had nothing to do with her judicial qualifications. The arrogant, presumptuous California quote above makes that clear: the idea that a Latina woman can objectively interpret the Constitution better than any white judge does not approach my favorite Leibnizian quote: "The only way to rectify our reasonings is to make them as tangible as those of the Mathematicians, so that we can find our error at a glance, and when there are disputes among persons, we can simply say: Let us calculate [calculemus], without further ado, to see who is right." Sotomayor seems to be suggesting Obama's empathetic ideal: deciding in favor of a politically-correct outcome and then retrofit some dubious legal rationale, much like Griswold's "penumbras, formed by emanations".
Obama's hyped reference to Sotomayor's judicial experience is somewhat disingenuous. Comparing her record with those of Chief Justice Roberts and Justice Alito is ludicrous. John Roberts, prior to joining the Court of Appeals, won 25 of 39 cases tried before the Supreme Court, one of the highest counts of anyone arguing before the Supreme Court. Sam Alito, who also worked for the Solicitor General, argued a dozen cases before the Supreme Court and was on the court of appeals before Sotomayor became a district court judge. I'm not attacking Sotomayor's qualifications here so much as an unfair, misleading and unnecessary comparison with sitting judges. Moreover, keep in mind Obama also said earlier that he was also looking outside the conventional judicial background, and there are reports that Secretary of Homeland Security Napolitano, although experienced as a US attorney and Arizona attorney general, was one of 4 candidates interviewed, despite no judicial experience.
He also misleadingly cited the fact that Republican President G.H.W. Bush nominated her for the district court to imply a GOP consensus; in fact, district judges come from the President's party 90% of the time. But Byron York in today's Washington Examiner points out the facts behind the nomination. Senator Moynihan (D-NY) and Senator D'Amato (R-NY) had a political compromise under the Republican presidents that Moynihan would get 1 of every 4 district court nominations--and Sotomayor was a Moynihan pick, not a D'Amato pick. York discussed the matter with a Bush Administration official whom confirmed that Sotomayor was not Bush's preference, that they didn't pick her for being a judicial conservative or moderate (which she's not), but it was a political fact of life that often existed when a state has US senators from different parties.
