Over the past week, I've written two posts and a miscellaneous comment on Judge Sotomayor. I've already taken a position against the confirmation of Sotomayor. But it never ceases to amaze me how many times people say things about the nomination that merit further discussion.
Geraldo At Large
I'm getting tired of hearing the same old same old poliltical spin from Democrats. This weekend's Geraldo Rivera program Geraldo at Large on Fox News featured Los Angeles' first Hispanic mayor in over 100 years, Antonio Villaraigosa, widely expected to run next year to become the first Hispanic ever to be elected governor (the only Hispanic to serve as governor was Romualdo Pacheco, whom assumed the title as lieutenant governor when the sitting governor went to the U.S. Senate). You don't think he might have some self-interest in promoting confirmation of the nation's first Hispanic justice, do you? In any event, we hear the same discussion about her having the most extensive and varied judicial experience of anyone on the bench. First, tenure on any bench is not necessarily correlated with excellence of performance but simply reflect the nature of employment. As I've mentioned in other posts, there are other relevant criteria concerning her experience, such as her judicial temperament and leadership on the court (e.g., the prevailing opinion on a decision). The fact that 3 of her 6 opinions before the Supreme Court have been overturned is not reassuring. Second, Sam Alito had 16 years on the Court of Appeals; Sotomayor's 17 years as a federal judge includes 6 years as a district judge. Sam Alito, in fact, had nearly 30 years of experience as a public sector lawyer, including about 15 years working for the Solicitor General, the Attorney General, and as a US Attorney or assistant, presenting a dozen cases in front of the Supreme Court. Sotomayor has no national litigator experience and has not (to the best of my knowledge) brought a case before the Supreme Court, and her prior legal experience was in private sector and working at the New York county level. Apparently, diversity of legal experience counts at the county level but not at the national litigator level. It's not a question of whether Sotomayor is qualified by her legal experience; the question is whether she was chosen for promotion to the Supreme Court based on substantive reasons or primarily symbolic reasons (e.g., a prominent female Hispanic judge). I suspect the latter; if there's one thing Obama knows, it's symbolism.
Face the Nation
Senator Dianne Feinstein repeated the usual Obamaian talking points on Sotomayor's life story and the disingenuous attempt to bolster the alleged bipartisan credentials, attempting to imply that Sotomayor was chosen (vs. nominated) by President G.H.W. Bush. (Senator Jon Kyl corrected the record, pointing out that Democratic Senator Moynihan pushed her nomination under a bipartisan agreement with Republican Al D'Amato). As to the life story of Sotomayor, as impressive as it is, it certainly doesn't measure up to the more compelling life story of Miguel Estrada, a Horandan immigrant who came to this country at the age of 17 with a limited knowledge of English and graduated magna cum laude from two Ivy League universities. If life history makes for a good federal judge, Ms. Feinstein, thn explain why you and other Democrats prevented a floor vote on the Estrada nomination to the Court of Appeals? The Democrats put forward a sham justification of his lack of judicial experience, even though the ABA unanimously found him well-qualified (based on his legal credentials and years of experience as a national litigator). [The reports that Napolitano, the Homeland Security Secretary, without judicial experience, was one of Obama's four finalists for the Supreme Court vacancy makes the hypocritical stance of the Democrats even more galling.] In fact, there are reports in February 2004 of internal memos to Illinois Senator Durbin expressing concern that Estrada was being groomed for a potential first Hispanic Supreme Court nomination and suggested the use of liberal Hispanic groups to do the dirty work of taking down Estrada, so Democrats would not be accused of discriminatory treatment of a qualified Hispanic nominee.
Dianne Feinstein did have an interesting rationalization on the often-replayed comment where Sotomayor catching herself talking about judges' making policy from the bench, saying, in effect, it's much ado about nothing, claiming that judges do that all the time when decisions don't have precedent. This is a sophistical argument: the establishment of new laws (policy) occurs through the legislature. Judicial review simply determines the legality or constitutionality of laws. Judge Sotomayor understands judicial activism doesn't simply refer to business as usual; that's why she sought to rephrase it after she said it. I would hope, among other things, that the senators question her views on something like the unconscionable 2005 Kelo v. City of New London decision, which materially expanded eminent domain rights of cities at the expense of individual property rights,a clear violation of the spirit and intent of the Bill of Rights, a potential majoritarian abuse of power, which was supported by all the court's liberal jurists and none of the court's conservative jurists.
Goldstein: Sotomayor and Race
I also believe that there was reference to a May 29 post by Tom Goldstein on SCOTUSblog, entitled "Judge Sotomayor and Race". Now Goldstein is patently pro-confirmation; this is clear from the fact that he totally ignores the Obama/Democratic hype on the nomination, her life story, etc., he simply dismisses the Ricci case as consistent with precedent--that there are no substantive issues raised in Ricci vs. others, he double-quotes words and phrases, mostly from conservatives and the national media, etc. In particular, he asserts he's taking the higher ground, focusing on her legal decisions. He then attempts to argue she often votes the same way Republican-nominated judges do. After reviewing the most recent 50 decisions on race, Goldstein reports that only 3 times among the 50 cases did Sotomayer rule in favor of discrimination claims, and those 3 cases were unanimously decided (including Republican-nominated judges)--and similarly the 45 cases rejected were also unanimous.
I find this line of argument rather amusing. Even if we take his analysis at face value, what do we make of it? Judge Sotomayor herself said being a Latina makes her a better judge; now if being ethnic and female makes a difference anywhere in a judge's decision, it should show up in disposition of these cases. If all we have are unanimous decisions to go by, you can't argue that Sotomayor's decisions are "change": they're simple "more of the same". So what's the evidence of her "empathy", her being a better judge as a Latina? And I'm assuming that the President's staff examined the very same decisions, yet let the President promote her candidacy in terms of her life story. If she's voting "mainstream", what does she bring to the table to qualify her for the Supreme Court?
However, Goldstein is basically misleading those of us whom are not lawyers. What I take away from a large number of unanimous decisions is that the case scenarios are highly structured, say, for instance, a number of frivolous appeals. But what Goldstein fails to point out is that the Ricci case is different.
Ricci v. DeStefano
The basic facts are that 15 firefighters passed a promotion exam carefully constructed for racial neutrality. No African-American candidates placed above the cutoff. The City of New Haven decided that the exam "discriminated" against African-Americans, simply based on the outcomes, and threw out the exam (based on the legal theory of "disparate impact")--and the promotions based on the exam. There is no doubt this logically implies the equivalent of a racial quota for promotions (prohibited by precedents like the 1978 Bakke decision) and relevant due process concerns (cf. the 2003 Gratz decision).
There is no doubt the mayor was facing pressure by local advocacy groups threatening lawsuits. But is it possible that disparate outcomes reflect disparate preparation effort?
According to Lawrence Taylor in yesterday's post in National Journal Magazine, after Sotomayor and two other justices agreed to dismiss the appeal of the Ricci cases after the district judge's rejection of the discrimination suit brought by the denied firefighters (note that all 4 judges in question were Clinton appointees):
The other Clinton-appointed Hispanic judge, Jose Cabranes, was so disturbed when he learned of the panel's curiously "perfunctory disposition" that he sought to have it reconsidered by the full 2nd Circuit.He lost by a 7-6 vote. In a dissent for the six, Cabranes suggested that the case might involve "an unconstitutional racial quota or set-aside." He added:
"At its core, this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"
The problem is, as Justice O'Connor noted (or implied) in the Grutter case, the use of adjustments to facilitate affirmative action policy cannot be maintained indefinitely in the long term. In many cases, African-Americans are trapped in failing public schools--schools that have been failing for decades, despite massive amounts of money and the "best efforts" of teacher unions and dysfunctional school administrations: high schools graduating students, often barely at suburban junior high school levels of basic skills. The solution is to provide better education opportunities and to encourage personal initiative and responsibility. As Taylor also writes:
The disparate-impact dynamic has the benefit of expanding opportunities for preferred minorities. But it also has great costs. It is unjust to high-scoring white and Asian workers; it has greatly eroded the anti-discrimination principle; and it downgrades incentives for students and workers to study and learn -- both in school and in rigorous test-preparation courses such as the one that helped some New Haven firefighters improve their skills and do well on the test.
That is a most unhealthy message to be sending to blue-collar families at a time when America's competitiveness is being crippled by the inferior educations of many of our high school graduates compared with those in other developed countries.
Measuring Judicial Performance
In devising a test or a measure, what you are looking for is not so much items which rate the same but those that discriminate between between "above-average" and "below-average" students in a class. Now, granted, we probably don't have good, reliable, validated measures on judicial performance, but there are some obvious operationalized metrics of judicial performance to me, for example, how often a particular judge's opinions are cited by other courts, the relative frequency a judge's opinion is reversed by a higher court, how many judges on a court join in the same opinion, etc. If I'm a senator preparing for the judge's confirmation hearing, I'm looking for maker cases and decisions to distinguish a consistent judicial disposition or philosophy.
Media Misrepresenting Position of GOP Senators on Sotomayor
Finally, there is a continued bias of the national media, including CBS, to focus on Limbaugh and Gingrich's "reverse racist" remarks (i.e., Sotomayor's widely reported quote that her experience as a Latina and a woman makes her an intrinsically better judge than any white man, something Obama unconvincingly tries to dismiss as nothing more than a bad choice of words and out of context. Tell me, Obama, what is the theory and evidence behind that statement, and if her judgment leads her to make those conclusions, why should we trust her judgment on more substantive issues?)
Bob Schieffer: Back on Planet Earth (Guantanamo Bay Detainee Camp Closure)
Bob Schieffer is basically saying that Obama on Planet Campaign found it easy to talk in terms of symbolic goals, but when it comes to governing on Planet Earth, he's discovering it's easier said than done, i.e., it's easy to announce the closure of Gitmo, but finding homes in our domestic prison system has run into political resistance with a vote total of around 90% not to fund the Gitmo closure without a specific plan in place. Don't you find it ironic, Bob, that we elected a senator with less than 4 years of national experience (2 of which he spent full-time running for the White House) and the President now is finding it important to note that Judge Sotomayor has 17 years of federal judicial experience? What exactly do we expect? We've seen numerous problems--running up a $2T deficit, missteps on AIG bonuses, Iraq/Aghan photos, military tribunals, etc. I attribute part of it to inexperience.
I do not understand the rush to close down the Guantanamo Bay detainee facility. Especially when the prison facility is modern and is already paid for. Yes, I understand it's very unpopular in some European circles. But Obama has responsibiilty for the trials, imprisonment, etc. I don't think the issues involved the facilities. So tell me, why are we speaking of dispersing these detainees at other facilities? Among other things, we don't want them to have access to general prison populations for purposes of spreading terrorism, and from what I understand, there are only a limited number of very expensive maximum-security cells. This means unless we have over 200 cells available--and one target location had only 1 spot currently available, we either have to construct new cells or prisons, or rotate out not-so-nice domestic types? Not to mention what do we need to do with new maximum-security domestic prisoners...
Charles Krauthammer on Sotomayor
Last Friday, conservative columnist Krauthammer published a Washington Post opinion entitled "Sotomayor: Rebut, Then Confirm". Among other things, he suggests having Mr. Ricci, the dyslexic firefighter who found out, after scoring well on a firefighter exam specifically tailored to control for cultural bias, that his earned promotion and those others were set aside by the city of New Haven whom rationalized that they might be sued by African-American firefighters not making the cutoff, the lead witness. He then suggests that the Senate minority debate the fine points of judicial philosophy and then set a higher ground of confirming a qualified nominee, despite her judicial philosophy, on traditional groupare these to nds of confirming a President's choices, even if you differ on philosophy. Been there, done that: the Republicans did that for Clinton appointees Ginsburg (3 votes against) and Breyer (9 votes against). Compare the same votes against Bush appointees by Democrats (despite smaller number of votes): Roberts (22 votes against) and Alito (42 votes against). I do agree that the Republicans should not filibuster her. However, I have doubts about her judgment, analytical skills and philosophy in terms of her short-shrifting Constitutional issues in the Ricci case, her leadership and temperament on the bench, and her Freudian slip quotations, which I consider to be unworthy of any federal justice, not just the Supreme Court. Hence I would vote against her confirmation.
