There have been times I've been so annoyed at Sotomayor's evasiveness and unresponsiveness, engaging in disingenuous, deliberately obfuscatory responses in such tedious arcane legalese, that I've found myself snapping back at her via my television set.
Status of the Nomination
As I write, it seems clear that Sotomayor is going to sail through; the Democrats at this point want what they consider a moral victory of attracting enough GOP votes to top Chief Justice Roberts' confirmation numbers (in the upper-70's). I don't think that's a fair criterion for a couple of reasons. First, the Democrats have more senators than the GOP had under Clinton or Bush. Second, it would seem more reasonable to set as a target the kinds of vote numbers received by the Clinton appointees to the high bench, i.e., Ruth Bader Ginsburg and Stephen Breyer (each receiving less than 10 votes against them and a clear majority of GOP votes). Senator Lindsey Graham (R-SC) made it clear from his opening statement this week that he would vote for her, barring a meltdown during testimony (which, of course, didn't happened), based on the traditional criteria that a President is entitled to his qualified choice. So far 3 GOP senators (Lugar, Snowe, and Martinez, the party's only Latino senator) have announced for her; the former two also voted her onto the Court of Appeals. So far Sotomayor has lost one of her original Court of Appeals supporters (Bennett (R-UT)). The Senate Minority Leader (McConnell) has come out against. I gave an earlier prediction which I think will hold. I don't think it's likely she improve her vote number significantly over her prior Court of Appeals confirmation vote, adjusted for seat changes, given her judicial record on affirmation action (particularly the recently reversed Ricci decision), her reversals, questions of temperament and her controversial speeches.
GOP Wary about a Latino Backlash for Refusing to Endorse Sotomayor?
A number of mostly liberal pundits suggest that a GOP vote against Sotomayor would be political suicide. I don't think that is legitimate. For one thing, no matter the Democrats try to hype Sonia Sotomayor's life story, it pales against immigrant Miguel Estrada's own nomination to the Court of Appeals, and the Democrats stonewalled a floor vote--which is far more damning than the Republicans' treating Judge Sotomayor with respect but voting against her in fewer numbers than the Democrats' nearly unanimous vote against Justice Alito, despite his longer experience on the Court of Appeals and his unopposed confirmation for the appellate position. The fact is that Latinos voted in significant numbers for George Bush after the GOP's mixed confirmation vote for Sotomayor 11 years ago. Unlike the case for Bush's appointees, there was been no serious talk about blocking the Sotomayor vote. In part, that's because retiring Justice Souter's post-confirmation migration to judicial activism is simply a quid pro quo and doesn't materially affect the balance of the court.
[While much has been made of Judge Sotomayor's being the first Latino nominee to the Supreme Court, at least 3 prominent Latinos were passed over years earlier, largely because of the Democratic resistance. José Cabranes, who mentored Sonia Sotomayor during her law school days at Yale, was considered as a candidate for the seat filled by Stephen Breyer; rumor has it that Judge Cabranes' more conservative approach to affirmative action issues was an issue. During the Bush Administration, the Democrats constantly fretted Alberto Gonzales, a former Texas Supreme Court justice and 1999 Latino Lawyer of the Year by the Hispanic National Bar Association, was being groomed for a Supreme Court appointment, and their opposition to Miguel Estrada being named to the appellate court was in part fueled by a similar concern.]
Is a "Wise Latina" a Better or Equally Capable Judge?
I never felt Judge Sotomayor was a racist on the infamous "wise Latina" quote, and I've made some relevant comments in Monday's post-session miscellany which I won't rewrite here (not to mention yesterday's post describing the origins of the quote and a discussion of the Ricci case). [I have felt her self-congratulatory reference to "wise Latina" in public speeches was oxymoronic and rather foolish for any judge to make whom has higher ambitions. It also sent the wrong message to young people considering the legal profession; it implies that sound judicial judgment relies not on legal scholarship and courtroom skills but on intrinsic personal characteristics beyond general intelligence.]
I had pointed out a quote from Minnesota Supreme Court Justice Esther Tomljanovich whom disliked fellow Justice Mary Jeanne Coyne's "wise old woman/wise old man" saying, declaring that if good judging was gender-neutral, "a lot of us wasted our time trying to assure the appointment of women to the bench." This seems unintelligible unless one starts with the unchallenged politically correct dogmatic assumption that diversity (the liberal codeword for female and minority affirmative advancement) is self-validating, i.e., the male-dominated judiciary is inherently defective and inferior. [I don't accept that attitude; I do think we potentially miss out on extraordinary individual leadership when we apply filters which arbitrarily exclude talent, but I don't make any assumptions on the distribution of that talent. Only a tiny percentage of lawyers ever make it onto the US Supreme Court, and there is a deep supply of highly qualified men. It's not immediately obvious, other than for dogmatic reasons, why gender makes a difference. In fact, former Justice O'Connor and Justice Ginsburg voted differently on multiple cases (e.g., Bush v Gore). It seems judicial philosophy is a better predictor of a decision outcome than gender.]
I disagree with Justice Tomljanovich that there is no value to diversity if gender has no meaningful impact on judicial decisions. It not just an issue of fact but appearance, and certainly a more representative court can be inspirational leaders and role models for a wider group of young people. In fact, there is a lot to be said about a classic Horatio Alger story of how Latina of modest means from the projects in New York City managed to climb her way to the top of the profession, a coveted nomination to the US Supreme Court.
Sotomayor's Hyped Qualifications
But it's hard to accept, at face value, the Democrats' propaganda claims over Judge Sotomayor's qualifications. It is interesting to note how liberal Jeffery Rosen of The New Republic was savaged for his pre-nomination article "The Case Against Sonia Sotomayor". This was not a conservative hatchet job; Rosen was not arguing that Sotomayor was unqualified or incompetent. The picture is more of a competent judge whom fully understands the facts, but is not a leading, influential, articulate exponent of her liberal judicial philosophy. As I pointed out in a previous post, Richard Posner of the Chicago Circuit has staggering intellectual accomplishments which dwarf Judge Sotomayor's output, including his 30 books and over 300 articles, blogs, and being a journal editor. [Of course, he is 70 years old, which no President would touch in terms of wanting a long-term influence on the Supreme Court.] She has been reversed on a significant percentage of opinions, even being rebuked on her cursory decision on the Ricci case by a fellow Clinton appointee and mentor, José Cabranes, whom has spent 30 years (vs. Sotomayor's 17) as both a district and appellate judge.
[Some will also point out up to 75% or so of Court of Appeals cases taken up by the Supreme Court are reversed, including some of Alito's appellete opinions. To a certain extent that's to be expected on a Supreme Court that's divided on lines of judicial philosophy with one or 2 swing votes. What disturbs me more is the way Sotomayor tried to bury the Ricci decision, so the argued constitutional issues would avoid scrutiny of the full circuit and the Supreme Court. I suspect this was not an outlier but indicative of her judicial philosophy and her approach. It should also be noted that Judge Cabranes is fully supportive of his former protégé's nomination and dismayed that his disagreement on her Ricci decision is being used as an argument against her confirmation.]
The Kerfuffle Over Sotomayor's Temperament
[Some will also point out up to 75% or so of Court of Appeals cases taken up by the Supreme Court are reversed, including some of Alito's appellete opinions. To a certain extent that's to be expected on a Supreme Court that's divided on lines of judicial philosophy with one or 2 swing votes. What disturbs me more is the way Sotomayor tried to bury the Ricci decision, so the argued constitutional issues would avoid scrutiny of the full circuit and the Supreme Court. I suspect this was not an outlier but indicative of her judicial philosophy and her approach. It should also be noted that Judge Cabranes is fully supportive of his former protégé's nomination and dismayed that his disagreement on her Ricci decision is being used as an argument against her confirmation.]
The Kerfuffle Over Sotomayor's Temperament
What has particularly annoyed me is the politically correct attacks in response to the temperament issues, explored by Senator Graham. The usual political correctness police are out, claiming that Sotomayor's boorish behavior of constantly interrupting lawyers and treating them disrespectfully is hypocritically praised as tough lawyering among men. This is little more than a state of denial. [Sotomayor simply responds that she's a tough questioner. But the record shows the other judges on the court also ask tough questions without getting similar feedback. Apparently she thinks belittling lawyers from the bench, interrupting them, and snapping or laughing at them, etc. reflects well on her profession.] The issue is not tough questioning; rather, it's a question of legal etiquette, applicable equally to men and women. The alleged behavior, bordering on abusive, was not simply a case of malcontent lawyers appearing before the court or complaint from her ideological opponents; it also came from other liberals and personnel on the circuit and sometimes rebukes from her own colleagues on the court.
As Rosen quotes in a follow-up piece from the Almanac of the Federal Judiciary,
As Rosen quotes in a follow-up piece from the Almanac of the Federal Judiciary,
Sotomayor can be tough on lawyers, according to those interviewed. "She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive--not very judicial. She does not have a very good temperament." "She abuses lawyers." She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like.
According to Ben Smith from Politico:
The Second Circuit recently provided audio recordings of oral arguments — some of which have never been published — from four of Sotomayor’s better-known cases, and snippets of a fifth, in response to a request from POLITICO, and the exchanges themselves – far better than any written impressions – offer a glimpse of her style as an appellate judge, and the Supreme Court Justice she’s likely to be.
The tapes reveal a blunt judge who talks as much or more than her (often equally combative) colleagues; who makes no bones about interrupting or even, in one case, laughing at lawyers; and who goes to no great length to disguise her quarrel with an argument or her point of view.
Sotomayor Rope-a-Dope Confirmation Hearings Strategy
To any reader not familiar with the "rope-a-dope" strategy, it stems from a mid-70's fight in Africa between George Foreman, a devastating, heavily muscled, unbeaten heavyweight boxing champion, and legendary challenger and former champion Muhammad Ali. Foreman had demolished the only two fighters (Frazier and Norton) whom had beaten Ali at the time. Ali knew better than to fight Foreman on his terms and assumed an extremely defensive stance with clenched forearms, often resting or bouncing off the ring ropes, giving George Foreman few openings to hit him. The idea was for Foreman to punch himself tired fruitlessly trying to penetrate Ali's defense. Ali's strategy worked, finally knocking out an exhausted Foreman in the middle rounds.
I am not the only one noting Sotomayor's emulation of a rope-a-dope strategy. There were a few ways I saw this happening. First, she gave highly nuanced responses to questions heavily laden with legalistic jargon. I thought that was a deliberate strategy on her part to run out the clock and redefine the senators' questions. She was more than willing to discuss arcane distinctions and legal technicalities, which is in her comfort zone and avoid larger-picture issues explicitly discussing judicial philosophy. I felt it that she was doing it to create an impression of legal expertise.
Second, Sotomayor engaged in a lot of political spin and talking points, with predictable defensive responses. For example, liberals (including Sotomayor during the hearings at a certain point) have responded in a disingenuous knee-jerk fashion to Sotomayor's "wise Latina" comments by referencing out of context Alito's reference to his Italian-American heritage and relevant ethnic slurs. Alito's comment arose out of a question from Senator Coburn regarding the judge's personal background, not his judicial philosophy, and Alito specifically noted in the same discussion, "And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result." In contrast, Sotomayor has belonged to or spoken in front of organizations with vested interests in an expansive affirmative action agenda, and what she did in Ricci confirms it. What's particularly interesting to see how Sotomayor deliberately evoked Alito in terms of repeatedly sticking to a talking point of "applying the law, not making it." She also made reference to former Justice O'Connor's hope that the needs for affirmative action policies will melt away over the coming 25 years.
She continually characterized her judicial philosophy as strictly relying on precedent and existing legal standards in a way that suggests that any lower-court decisions should be unanimous. This is clearly misleading; otherwise, the Supreme Court would never have agreed to hear Ricci. It doesn't explain why Sotomayor and others failed to even acknowledge the constitutional issues of equal protection raised by the plaintiff, despite the fact that Title VII cannot be construed in a way as to establish or promote racial quotas of any kind, which materially violates the Constitution. Title VII is a LAW, not part of the Constitution. Equal protection is guaranteed by the Constitution.
I have no doubt that Sotomayor could find some post hoc rationalization for a liberal-desired outcome "applying the law", i.e., finding relevant precedents among a potpourri of mixed precedents. At one point during the hearing, she discusses the issue at the heart of Ricci as being all about an allegedly defective firefighter's exam (of course, there is no evidence of any substantive issue; the only issue was the racial/ethnic distribution of results).
She referred to the "wise Latina" comment as a "poor choice of words" (even though she repeated this line in multiple speeches over the years and she said it AFTER saying she disagreed with Justice O'Connor's much-cited quote that a "wise old man and wise old woman will reach the same conclusion in deciding cases").
Finally, Sotomayor gave fairly evasive responses to constitutional issues which theoretically could come up before the Supreme Court, and she didn't want to deal with hypotheticals. I thought one of the telling points was Senator Coburn's (R-OK) clear frustration with Sotomayor's discussing the vagaries of state or federal law in terms of the implications of advancement of prenatal technology on Roe v Wade, which she claims is a (not enumerated) woman's constitutional right, but she finds all sorts of nuances to an individual's right to defend his family (the Second Amendment), which is an enumerated right.
Final Thoughts
I think the Republicans set the right tone, with Senator Sessions and Graham's question sessions particularly effective. Sotomayor was clearly thrown off-stride by Graham's staccato questioning style and gave a weak, defensive response to Graham's assertion that the negative comments to Sotomayor in the Almanac "stuck out like a sort thumb". Unlike the Democrats who resorted to gross distortions of records on judicial appointments (e.g., the Bush difficulties in nominating Pickering, Wallace, and Southwick for the same appellate position for the fifth circuit) or questioning Estrada on his alleged agenda in the hiring of SCOTUS (Supreme Court of the US) law clerks, the Republicans paid tribute to Sotomayor's Horatio Alger life story and stuck to her judicial work history and speeches.
Legal blogger Jonathan Turley recently wrote relevant comments in USA Today:
Second, Sotomayor engaged in a lot of political spin and talking points, with predictable defensive responses. For example, liberals (including Sotomayor during the hearings at a certain point) have responded in a disingenuous knee-jerk fashion to Sotomayor's "wise Latina" comments by referencing out of context Alito's reference to his Italian-American heritage and relevant ethnic slurs. Alito's comment arose out of a question from Senator Coburn regarding the judge's personal background, not his judicial philosophy, and Alito specifically noted in the same discussion, "And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result." In contrast, Sotomayor has belonged to or spoken in front of organizations with vested interests in an expansive affirmative action agenda, and what she did in Ricci confirms it. What's particularly interesting to see how Sotomayor deliberately evoked Alito in terms of repeatedly sticking to a talking point of "applying the law, not making it." She also made reference to former Justice O'Connor's hope that the needs for affirmative action policies will melt away over the coming 25 years.
She continually characterized her judicial philosophy as strictly relying on precedent and existing legal standards in a way that suggests that any lower-court decisions should be unanimous. This is clearly misleading; otherwise, the Supreme Court would never have agreed to hear Ricci. It doesn't explain why Sotomayor and others failed to even acknowledge the constitutional issues of equal protection raised by the plaintiff, despite the fact that Title VII cannot be construed in a way as to establish or promote racial quotas of any kind, which materially violates the Constitution. Title VII is a LAW, not part of the Constitution. Equal protection is guaranteed by the Constitution.
I have no doubt that Sotomayor could find some post hoc rationalization for a liberal-desired outcome "applying the law", i.e., finding relevant precedents among a potpourri of mixed precedents. At one point during the hearing, she discusses the issue at the heart of Ricci as being all about an allegedly defective firefighter's exam (of course, there is no evidence of any substantive issue; the only issue was the racial/ethnic distribution of results).
She referred to the "wise Latina" comment as a "poor choice of words" (even though she repeated this line in multiple speeches over the years and she said it AFTER saying she disagreed with Justice O'Connor's much-cited quote that a "wise old man and wise old woman will reach the same conclusion in deciding cases").
Finally, Sotomayor gave fairly evasive responses to constitutional issues which theoretically could come up before the Supreme Court, and she didn't want to deal with hypotheticals. I thought one of the telling points was Senator Coburn's (R-OK) clear frustration with Sotomayor's discussing the vagaries of state or federal law in terms of the implications of advancement of prenatal technology on Roe v Wade, which she claims is a (not enumerated) woman's constitutional right, but she finds all sorts of nuances to an individual's right to defend his family (the Second Amendment), which is an enumerated right.
Final Thoughts
I think the Republicans set the right tone, with Senator Sessions and Graham's question sessions particularly effective. Sotomayor was clearly thrown off-stride by Graham's staccato questioning style and gave a weak, defensive response to Graham's assertion that the negative comments to Sotomayor in the Almanac "stuck out like a sort thumb". Unlike the Democrats who resorted to gross distortions of records on judicial appointments (e.g., the Bush difficulties in nominating Pickering, Wallace, and Southwick for the same appellate position for the fifth circuit) or questioning Estrada on his alleged agenda in the hiring of SCOTUS (Supreme Court of the US) law clerks, the Republicans paid tribute to Sotomayor's Horatio Alger life story and stuck to her judicial work history and speeches.
Legal blogger Jonathan Turley recently wrote relevant comments in USA Today:
The outcome of Sonia Sotomayor’s hearings is not much in doubt. What has been conspicuously absent is substance. The vast majority of questions and answers remained on a shallow and predictable level where Sotomayor did little more than describe current doctrines and case law — avoiding disclosures of her own views. What is most striking is how Sotomayor’s statements were virtually identical to both her conservative and liberal.
The content-light character in these hearings is largely the product of the “Ginsburg rule":..."I’m not going to give an advisory opinion on any specific scenario because as clear as it may seem to you, I think I have to avoid responding to hypotheticals because they may prove not to be so hypothetical."
Later nominees for both parties have relied on the Ginsburg rule to turn the hearings into prolonged photo-ops for senators, who largely ask wafer-thin questions to solicit largely scripted answers... little is revealed in these hearings that you could not find in a standard legal hornbook.
Ginsburg had no problem discussing her views [in public] once she was confirmed — despite the fact that she is likely to vote on these issues while on the court...Likewise, Justice Antonin Scalia has spoken on issues pending before the court...
End the Ginsburg rule by insisting that nominees answer questions about their specific views on constitutional rights. The only basis for refusing to be forthright should be limited to questions regarding how a nominee would vote on pending cases.
I do think, just like the Presidential "debates", the Senate Judiciary SCOTUS confirmation hearings are rapidly becoming a joke, little more than political spin and well-rehearsed soundbites. If we don't do away with the Ginsburg rule, we may well treated to more of Senator Gillibrand (D-NY) filibustering her own over-the-top introduction for Sotomayor, Senator Chuck Schumer (D-NY) struggling to hold back his own tears, Senator Whitehouse (D-RI) getting "goosebumps", and Senator Cardin (D-MD) reading more favorable feedback of Judge Sotomayor from the Almanac (in rebuttal to Senator Graham's discussion of the judge's temperament) into the record. Or newly minted "Senator" Franken (D-MN) and Judge Sotomayor enthusiastically discussing their common love for the television series Perry Mason. (Of course, Sonia Sotomayor was inspired to work for the NY district attorney by a television series where the prosecution lost (nearly) every case to defense attorney Mason.) No doubt Americans with disabilities are wondering why Sonia Sotomayor wasn't equally inspired by Raymond Burr's follow-up series, Ironside (about a paraplegic detective)...
