Smooth sailing for Sotomayor? [Archive] - Straight Dope Message Board

Rufus Xavier

05-26-2009, 09:56 AM

Here, in full context, I have bolded the quote referred to. The text is excerpted from the speech in question. If you click the "more" option in the volokh.com link, you can see it published there.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice 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. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

I believe the second paragraph puts the comment in its proper context.

Quartz

05-26-2009, 09:56 AM

Here's the offensive line:

And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.

So much for racial or sexual equality. The law is supposed to be blind as to sex or colour or any other discriminating factor. All are supposed to be equal before the law. Do you really want a bigot on your Supreme Court?

Lamar Mundane

05-26-2009, 09:59 AM

I suspect she'll sail through. Her education is top notch, her background is clean, and she's considered a moderate. This'll make something like six or seven Catholics on the SC.

The first hispanic on the Supreme Court will be a New York Puerto Rican, hardly representative of the average Hispanic-American.

P.S. The right-wing talkers have chosen their buzzword already - empathy. Expect to see and hear that a lot. We're already seing it hinted at here.

Quartz

05-26-2009, 10:02 AM

I believe the second paragraph puts the comment in its proper context.

Judging people of the present by the people of the past isn't on. Perhaps she should be judged by her Hispanic forebears?

Diogenes the Cynic

05-26-2009, 10:14 AM

OK, I read the transcript of the whole speech, and the passage in question is being taken out of context and distorted. She wasn't saying that any Latina woman would render a better decision than any white male. She was saying -- hypothetically -- that a white male who had not had certain experiences, would not necessarily have the same "wisdom" as a Latina woman who had. She wasn't speaking in absolutes, and she wasn't speaking in terms of race or gender per se, but in terms of life experience. It was all in reference to a statement attributed to Justice Sandra Day O'Connor that "wise old man and wise old woman will reach the same conclusion in deciding cases." Sotomayor was saying that wasn't necessarily true if the life experiences were different.

Of course context and true intent will not matter a whit. The right now has all the ammunition they need to paint her as a raving, Whitey hating racist. I can't wait to hear all the indignant, sanctimonious sermons on tolerance we're about to get from Newt Gingrich and Rush Limbaugh.

Diogenes the Cynic

05-26-2009, 10:15 AM

Here's the offensive line:

So much for racial or sexual equality. The law is supposed to be blind as to sex or colour or any other discriminating factor. All are supposed to be equal before the law. Do you really want a bigot on your Supreme Court?
I fail to see anything offensive or bigoted in that line. It says nothing about equality.

Richard Parker

05-26-2009, 10:17 AM

She's too qualified and the Congress is too democratic for her not to be confirmed, barring a committee filibuster from rejected-for-being-racist Sessions. But I really hope the Republicans spend political capital fighting that losing battle.

Algher

05-26-2009, 10:18 AM

6 Catholics, 2 Jews, and one token Protestant. Once again, my WASP brethren are left in the cold...

She will get questioned about her comment during confirmation hearings - and I am sure that she will have a well rehearsed, nuanced answer prepared. Unless something really bad pops up, I don't see this being too much trouble. The Dems have the votes, and Obama would have had to put up someone really out there for a couple of Southern Democrats to vote against it.

Diogenes the Cynic

05-26-2009, 10:19 AM

Judging people of the present by the people of the past isn't on. Perhaps she should be judged by her Hispanic forebears?
Who is she judging in the present?

Read this part again:

"I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown."

That pretty much undermines everything you're trying to allege about her attitude.

Mr. Moto

05-26-2009, 10:19 AM

Diogenes the Cynic

05-26-2009, 10:23 AM

P.S. The right-wing talkers have chosen their buzzword already - empathy. Expect to see and hear that a lot. We're already seing it hinted at here.
Funny how there's no more hateful and poisonous word or concept in Christian political right culture than "empathy."

Richard Parker

05-26-2009, 10:24 AM

It points to a problem with this "empathy" standard though - sometimes a particularly nasty individual or corporation in a case deserves to win based on the facts at hand and the law in question, even over an appealing individual. Applying empathy here would be misguided, wouldn't it? And yet we have seen time and time again where justice was perverted because an empathy standard was applied over a legal one.

I hope this is hammered out in hearings - it needs to be.

You misunderstand the concept. When Obama refers to empathy, he's talking about a couple of different things but ruling based on a personal sense of justice without regard to the law, as you suggest, is not one of them. Empathy is the ability to put yourself in the litigants shoes because you have the requisite life experience to do so. It is often a necessary mental exercise in order to know how to apply the law to a given set of facts.

Diogenes the Cynic

05-26-2009, 10:25 AM

DSYoungEsq

05-26-2009, 10:26 AM

Judging people of the present by the people of the past isn't on. Perhaps she should be judged by her Hispanic forebears?

This is disingenuous at best, blatant intentional distortion of what she was saying at its worst. She is saying that it doesn't matter what your race or sex, you have the capability of reaching good determinations. In the first excerpted paragraph, she disputes Justice O'Connor's purported quote by noting two things: "wise" doesn't necessarily mean able to reach good decisions, and that even among truly "wise" people, someone who has experienced the subject under discussion before the court will have a better perspective than someone who has not had that experience. In the second paragraph she goes on to clarify that this doesn't mean that old, "white" men can't reach good decisions; indeed, on many occasions they have done so.

In other words, having a Supreme Court of old white men doesn't mean you are getting good decisions, nor does it mean you are getting bad decisions. It depends upon who the people are. But certainly, someone who has lived a life where they are discriminated against because of race or gender is more likely to comprehend the ramifications of a possible decision on an issue of discrimination. Etc.

Lamar Mundane

05-26-2009, 10:30 AM

It points to a problem with this "empathy" standard though - sometimes a particularly nasty individual or corporation in a case deserves to win based on the facts at hand and the law in question, even over an appealing individual. Applying empathy here would be misguided, wouldn't it? And yet we have seen time and time again where justice was perverted because an empathy standard was applied over a legal one.

I hope this is hammered out in hearings - it needs to be.

Here we go - three times in one paragraph (empathy). This could prove interesting. The Republican leadership understands that this is a time to gain political capital, not time for a big fight. She's replacing a reliable left-leaning justice - there's nothing to be gained here - it's a wash. They know they should be saying to the Dems "OK, I'll give you my vote here, but if something happens to Thomas or Scalia, you owe me."

Unfortunately for them, Limbaugh and Hannity will be screaming about this and getting their constituents all riled up and could force them to oppose her just to say they did when the next election comes along. There are a lot of leaders in the Republican party who wish that Hannity and Limbaugh would just go away.

GIGObuster

05-26-2009, 10:32 AM

It points to a problem with this "empathy" standard though - sometimes a particularly nasty individual or corporation in a case deserves to win based on the facts at hand and the law in question, even over an appealing individual. Applying empathy here would be misguided, wouldn't it? And yet we have seen time and time again where justice was perverted because an empathy standard was applied over a legal one.

I hope this is hammered out in hearings - it needs to be.
NPR made the remark that Sotomayor sided in favor of TWA or Boeing when the settlement with the relatives of the victims of TWA 800 was made.

IIRC as a technicality the relatives would get a larger settlement if the disaster had taken place in the Long Island territory, Sotomayor stuck to the law and pointed out that the evidence showed that the disaster took place outside the territory. So the relatives got a settlement but the corporations had to pay less than was expected.

Tom Tildrum

05-26-2009, 10:34 AM

OK, I read the transcript of the whole speech, and the passage in question is being taken out of context and distorted. She wasn't saying that any Latina woman would render a better decision than any white male. She was saying -- hypothetically -- that a white male who had not had certain experiences, would not necessarily have the same "wisdom" as a Latina woman who had. She wasn't speaking in absolutes, and she wasn't speaking in terms of race or gender per se, but in terms of life experience. It was all in reference to a statement attributed to Justice Sandra Day O'Connor that "wise old man and wise old woman will reach the same conclusion in deciding cases." Sotomayor was saying that wasn't necessarily true if the life experiences were different.

Well, but the life experience that she's talking about appears to be the experience of "being a Latina," so I don't think it's as clear a distinction between experience and ethnicity as you're drawing. Still, as others have said, I'm sure she'll be able to give an answer that neutralizes this statement sufficiently.

Marley23

05-26-2009, 10:35 AM

She's likely to get confirmed pretty easily.

So much for racial or sexual equality. The law is supposed to be blind as to sex or colour or any other discriminating factor. All are supposed to be equal before the law. Do you really want a bigot on your Supreme Court?
Snort. Yes, Dred Scot would role over in his grave if he knew a bigot was about to be seated on the Supreme Court.

What I think Sotomayor is talking about in these quotes, as well as what Obama referred to with his empathy remark, is that it's valuable to have justices who are aware their rulings affect people's lives and aren't considering theory alone. While the courts shouldn't be making rulings based on people's feelings, I think that makes sense.

DSYoungEsq

05-26-2009, 10:55 AM

Where do you draw that line? And how do you apply this "empathy?" Suppose the issue is, oh, let's say, voting rights. Up for decision is a proposed rule requiring that ballots be printed in English only in the state of Colorado (total hypothetical). Ignoring any direct precedent (that is, assuming that the issue in question is one of "first impression"), the Court must decide if the law violates the Equal Protection Clause of the Fourteenth Amendment (or possibly the Due Process Clause, but let's not quibble). Sonia Sotomayor is trying to decide how to rule in the case.

She has empathy for the non-English-speaking voters of America. She understands how difficult it is to properly comprehend a ballot without knowing the language it is written in. She also has grown up in an environment of discriminatory effect caused by lack of political power for her "minority." All this experience compels her to believe that, legal issues aside, it is imperative for those who are entitled to vote to be able to read the ballot in their native tongue.

On the other hand, the briefs, and the oral argument, have convinced her that, under the standards of review applicable to the case, the state's statute should be upheld. Empathy aside, ruling as the computer would rule, following logic alone, she would end up denying this imperative from occurring.

The proponents of striking down the law offer this rationale for her to do so: they argue that, even if the state's interest is sufficiently compelling, and even if the remedy is narrowly enough tailored to address that remedy, that in cases like this the Court should include in its standard of review the impact of the statute upon the disfavored section of the population. In this calculation, they argue that the state simply cannot be allowed to remedy this issue in this way because the impact on an important right is so great that should be sufficient to overcome the otherwise compelling logic of the state's case.

So, then, where does the empathy come into play? Does she use the empathy to apply the "out" the objectors have offered, even though that's not part of the usual logical calculation involved in review of these type of cases? Does she use the empathy to ignore or re-cast the otherwise impeccable logic that would lead to a decision she knows is bad for the people of the state? Does she craft an entirely new set of rules for reviewing laws of this sort, on the basis that the old rubric doesn't reach "correct" results?

matt_mcl

05-26-2009, 10:57 AM

So much for racial or sexual equality. The law is supposed to be blind as to sex or colour or any other discriminating factor. All are supposed to be equal before the law. Do you really want a bigot on your Supreme Court?

I think it's frightening that you think that being aware of the existence of differences between people is incompatible with upholding their equality. I hate to break it to you, but people are different from one another. "Equal" and "alike" do not mean the same thing.

Gangster Octopus

05-26-2009, 11:00 AM

She's likely to get confirmed pretty easily.

I think you underestimate the Republican's and the media's ability to bring a large dose of idiocy to the table.

Richard Parker

05-26-2009, 11:03 AM

On the other hand, the briefs, and the oral argument, have convinced her that, under the standards of review applicable to the case, the state's statute should be upheld. . . So, then, where does the empathy come into play?

It doesn't. Obama has used the word empathy to mean a few different things, but it doesn't include ignoring clear law.

As he said: "[I]n the overwhelming number of Supreme Court decisions, you read the statute. You look at the case law, and most of the time the law is pretty clear -- 95% of the time. Justice Ginsburg, Justice Thomas, Justice Scalia -- they're all gonna agree on the outcome. But it's those 5% of the cases that really count."

As Obama has stated a dozen times now, when the law is clear, the judges role is simply to faithfully apply it. Empathy comes into play in that 5% of difficult cases in which the law, or how to apply the law to this set of facts, is not clear.

If you want to examine how empathy is properly employed, you need to ask a hypothetical that doesn't fall outside of where Obama says it is useful.

Marley23

05-26-2009, 11:09 AM

Where do you draw that line? And how do you apply this "empathy?"
That's where the rubber meets the road. I don't have a firm answer for it.

I think you underestimate the Republican's and the media's ability to bring a large dose of idiocy to the table.
I'm sure a long confirmation fight would be more interesting for political analysts, but with the control Democrats have in the Senate, I don't see it. It doesn't shift the balance of the court anyway, so if they filibuster and scream, there's not much for the GOP to gain.

Fotheringay-Phipps

05-26-2009, 11:13 AM

As Obama has stated a dozen times now, when the law is clear, the judges role is simply to faithfully apply it. Empathy comes into play in that 5% of difficult cases in which the law, or how to apply the law to this set of facts, is not clear.But the overwhelming majority of cases that actually reach the SC are in that 5%.

Empathy would play a bigger role for a SC Justice than it would for a lower court judge.

Richard Parker

05-26-2009, 11:16 AM

But the overwhelming majority of cases that actually reach the SC are in that 5%.

Empathy would play a bigger role for a SC Justice than it would for a lower court judge.

It is true that the Supreme Court handles more gray areas than lower courts. But you're wrong about the overwhelming majority being that 5%. Obama was talking about the Supreme Court with that figure, and he is correct. 95%/5% is a bit of hyperbole. It's closer to 75%/25%, but the point stands. The vast majority of Supreme Court cases are not 5-4 close calls.

furt

05-26-2009, 11:22 AM

Awww, Tom. Why'd you have to go spoil my fun? I thought for sure there'd be at least one or two suckers who'd fall for it.

I don't see anything remotely akin to what furt is implying.

snerk. giggle. Nevermind, Tom.

Diogenes the Cynic

05-26-2009, 11:23 AM

Diogenes the Cynic

05-26-2009, 11:26 AM

Awww, Tom. Why'd you have to go spoil my fun? I thought for sure there'd be at least one or two suckers who'd fall for it.

snerk. giggle. Nevermind, Tom.
Nothing to snerk about. You were taken in by a decontextualized quote. I've already fully addressed it. It's a phony outrage.

Fotheringay-Phipps

05-26-2009, 11:30 AM

Mr. Moto

05-26-2009, 11:32 AM

RickJay

05-26-2009, 11:34 AM

I think you underestimate the Republican's and the media's ability to bring a large dose of idiocy to the table.
Unless that idiocy includes switching the party affiliation of ten senators, it won't mean a whole hell of a lot.

DSYoungEsq

05-26-2009, 11:40 AM

It is true that the Supreme Court handles more gray areas than lower courts. But you're wrong about the overwhelming majority being that 5%. Obama was talking about the Supreme Court with that figure, and he is correct. 95%/5% is a bit of hyperbole. It's closer to 75%/25%, but the point stands. The vast majority of Supreme Court cases are not 5-4 close calls.

Nor are the vast majority of cases decided 9 - 0. Or even 7 - 2. Which in your view of what the President was saying would be the case, because he says in those cases, all judges would agree.

And even accepting your concept, it doesn't avoid the question. WHERE in ANY Supreme Court case is there EVER room for applying "empathy?" And once you do find a way to apply it, how do you limit its application? Because it is NOT the case that, in the vast (95%) majority of cases, everyone will agree on how to apply the law. If you think so, you've forgotten the old BrennanMarshallInDissent monster (which, frankly, has much in common with the ScaliaThomasInDissent monster ;) ).

DSYoungEsq

05-26-2009, 11:42 AM

Unless that idiocy includes switching the party affiliation of ten senators, it won't mean a whole hell of a lot.

As it stands, unless and until Franken is seated for Minnesota, the Democrats cannot break a Republican filibuster.

Which means it can mean a hell of a lot.

elucidator

05-26-2009, 11:47 AM

Well, she's his nominee and this is a concept that she has indicated that she's interested in as well. And while I have indicated in the past that I favor bringing people of various backgrounds to the Court, I think this is necessary because they could bring a range of expertise there, not necessarily because they could have varying degrees of empathy.

Empathy is a form of expertise, it is not simply an intellectual awareness of fact.

For instance, someone who has never loved and wanted to marry could not really understand the injury to someone who is denied such an option. They might well examine the issue within a framework of relentless rationality: it may cost the state money and effort to provide equal marriage, and these are tangible, whereas the desire to marry equally is an emotional matter, hence, not tangible, and hence, not a question for the law.

It is the triumph of intelligence over wisdom.

BrainGlutton

05-26-2009, 11:49 AM

And yet we have seen time and time again where justice was perverted because an empathy standard was applied over a legal one.

For instance?

Marley23

05-26-2009, 11:49 AM

WHERE in ANY Supreme Court case is there EVER room for applying "empathy?"
If Dred Scot wasn't a valid example, the Safford v. Redding case probably would be.

Marley23

05-26-2009, 11:50 AM

As it stands, unless and until Franken is seated for Minnesota, the Democrats cannot break a Republican filibuster.

Which means it can mean a hell of a lot.
No. There are 99 Senators right now, which means it takes only 59 to break a filibuster.

MovieMogul

05-26-2009, 12:03 PM

Here (http://www.salon.com/env/mind_reader/2009/05/12/obama_empathy/index.html)'s an interesting piece on Empathy and its place in jurisprudence.

As for Sotomayer (http://www.spectator.co.uk/alexmassie/3646096/obamas-supreme-court.thtml):I have no idea whether Sonia Sotomayor is qualified to sit on the United States Supreme Court. But, unlike Harriet Miers, she's not obviously unqualified. Having been appointed to the bench by George HW Bush is no bad thing; having been recommended by Daniel Patrick Moynihan a considerable advantage. Presuming that no scandalous relevation from her past bubbles up into the public domain one imagines she will be confirmed. This appointment, though it won't shift the balance of the court too much, poses a couple of awkward problems for the Republican party. Since I doubt they can prevent her being confirmed, one wonders whether there's any significant upside in fighting the nomination with as much vim and anger as many interest groups on the right are likely to demand?

Identity politics and treating entire swathes of the population as client groups is not an especially bonny aspect of American politics. But it is what it is. While it's not obviously the case that just putting the first hispanic justice on the bench necessarily advances or even much solidifies Democratic support amongst latino voters, one can easily imagine a situation in which a raucous, energetic, strident Republican attempt to derail the nomination could further alienate hispanic voters from the GOP. That might be unfair, but I wager it's how it would be perceived by latino voters. So this would seem, at first blush, to be the trap Obama has set for the Republicans: accept the nomination (assuming there's no scandal) and like it or fight it and lose and do more damage to your own interests than you would if you'd simply seethed in silence and accepted your inevitable defeat. It's one they do not need to fall into...

Captain Carrot

05-26-2009, 12:06 PM

As it stands, unless and until Franken is seated for Minnesota, the Democrats cannot break a Republican filibuster.

Which means it can mean a hell of a lot.

Even if 60 votes were needed, Collins and Snowe are practically guaranteed votes.

Tom Tildrum

05-26-2009, 12:06 PM

Diogenes the Cynic

05-26-2009, 12:08 PM

Well, she's his nominee
Irrelevant.
and this is a concept that she has indicated that she's interested in as well.
Cite?

Mr. Moto

05-26-2009, 12:11 PM

For instance?

The Duke rape case travesty only went as far as it did because the victim was seen in a sympathetic light by many, and likewise the defendants were seen in an unsympathetic light. This only changed as more facts in the case were made public, and wasn't a foregone conclusion at the outset.

Medical malpractice cases often depend on juries to sympathize with the victim and see the doctor, hospital, or insurer in a bad light - and often juries will award damages even in cases where nobody has done anything wrong. This led to the collapse of malpractice coverage and high-risk medical practice in some states and necessitated legal reforms there. West Virginia in particular suffered from this and has only recently begun to recover.

I can easily cite more, but these are particular egregious examples. Indeed, I feel a better case can be made for employing empathy in crafting laws, but when it comes to judging, keeping empathy out of it. Things will fall apart pretty quick when penalties are applied to one group over another in a misguided attempt to make up for past wrongs.

elucidator

05-26-2009, 12:29 PM

Doomed. Jobba the Rush has spoken:

http://thinkprogress.org/2009/05/26/limbaugh-sotomayor-fail/

Hentor the Barbarian

05-26-2009, 12:39 PM

Mr. Moto, would you please clarify what you mean when you use the term "empathy" or "empathy standard"?

Do you mean to employ it as a synonym for sympathy, as you have explicitly done in your last post? Do you think Obama does too?

Sam Stone

05-26-2009, 12:41 PM

So about this 'empathy' standard... Let's say that the Supreme court was made up of nine conservative white old guys. Now comes a case where an old white businessman is being sued because he refuses to hire a qualified black person.

Do you really want the old white guys deciding the case based on their 'empathy'?

I thought you wanted a country of 'laws, not men'. Of objective standards and written rules that take away the power of individual men to rule over people by fiat, prejudice, or bias. And what is 'empathy' if not bias towards one side of a legal dispute?

If you think it would be so great for the supreme court, or any court, to start re-defining laws or overlooking them based on their personal feelings about the litigants, try to imagine that situation existing when the people using their 'empathy' are your political opponents. What goes around comes around, eventually. Do you really want to set the precedent for this type of rule making?

Diogenes the Cynic

05-26-2009, 12:41 PM

The Duke rape case travesty only went as far as it did because the victim was seen in a sympathetic light by many, and likewise the defendants were seen in an unsympathetic light. This only changed as more facts in the case were made public, and wasn't a foregone conclusion at the outset.

Medical malpractice cases often depend on juries to sympathize with the victim and see the doctor, hospital, or insurer in a bad light - and often juries will award damages even in cases where nobody has done anything wrong. This led to the collapse of malpractice coverage and high-risk medical practice in some states and necessitated legal reforms there. West Virginia in particular suffered from this and has only recently begun to recover.

I can easily cite more, but these are particular egregious examples. Indeed, I feel a better case can be made for employing empathy in crafting laws, but when it comes to judging, keeping empathy out of it. Things will fall apart pretty quick when penalties are applied to one group over another in a misguided attempt to make up for past wrongs.
None of this is responsive to the question. None of them involve JUDGES putting sympathies ahead of the law.

The Duke accuser wasn't sympathetic for very long, by the way. Public sentiment was overwhelmingly with the players from very early on.

Icarus

05-26-2009, 12:42 PM

Doomed. Jobba the Rush has spoken:

http://thinkprogress.org/2009/05/26/limbaugh-sotomayor-fail/

And it is reported that the Pope remains a Catholic..........

Diogenes the Cynic

05-26-2009, 12:43 PM

So about this 'empathy' standard...
There is no such standard being asserted by the nominee. This is a phony issue.

Voyager

05-26-2009, 12:45 PM

Since Sotomayor isn't going to change the perceived overall left-right calculus on the court, I'd be surprised if she was the subject of a big fight.

Remember, Ginsburg was confirmed 96-3, and Breyer 87-9.

If the GOP has maintained any shred of rationality, I agree. Now way Snowe and Collins are going to vote for a filibuster, so this is a done deal. I'm sure there will be the standard ranting and raving, but any serious effort by the Republicans to stop the nomination, given its futility and its impact on Hispanics, would mean that they are totally captive of the loons.
Not that coming out against empathy is all that bright.

Hentor the Barbarian

05-26-2009, 12:45 PM

Sam Stone, your confusion of the word is less clear than Mr. Moto's, but is still evident. Would you please explain what you mean by the use of the word "empathy"? Would you contrast it with sympathy, if possible?

Voyager

05-26-2009, 12:48 PM

Gorsnak

05-26-2009, 12:51 PM

And what is 'empathy' if not bias towards one side of a legal dispute?

Empathy is the ability to put yourself in someone else's shoes and consider things from their perspective. That's all it is. It doesn't entail that you take that other perspective to be privileged in any sense, or biased towards it. Merely that you're capable of considering it.

I'm not sure how being able to consider other points of view necessarily entails bias towards one side of a legal dispute. Perhaps you could elaborate on the connection you see, because so far as I can tell your argument so far relies on conflating empathy and sympathy.

Sinaijon

05-26-2009, 12:54 PM

You realize empathy is not limited to those of the same age, color, sex and religion as you, right?

It's not limited to those of the opposite age,color,sex, or religion either.

gonzomax

05-26-2009, 12:57 PM

The repubs have defined themselves as the "opposition party" and take it seriously. I expect a filibuster and the repubs holding as a bloc against any thing Obama does.
I want to hear Sessions ,who declared every Bush nominee including Meyers as the single best qualified person in the country.

Diogenes the Cynic

05-26-2009, 12:57 PM

Empathy is the ability to put yourself in someone else's shoes and consider things from their perspective. That's all it is. It doesn't entail that you take that other perspective to be privileged in any sense, or biased towards it. Merely that you're capable of considering it.
A point explicitly made by Sotomayer herself:
we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

Diogenes the Cynic

05-26-2009, 12:59 PM

It's not limited to those of the opposite age,color,sex, or religion either.
Who said it is?

Sam Stone

05-26-2009, 01:00 PM

Here's a negative assessment of her from that bastion of the right, The New Republic (http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085):

Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue."

The biggest problem for her nomination is going to be the current Supreme Court review of her ruling in Ricci v. DeStefano, It's entirely possible that the Supreme Course will reverse her. And this is a potentially explosive political issue. In this case, a fire department held exams for promotion, and after the results of the exam came in, they canceled the promotion because not enough minorities passed the exam. The firemen who studied like crazy for it and passed sued the fire department, and a panel that included Sotormayor ruled against the firefighters.

From Wikipedia (http://en.wikipedia.org/wiki/Ricci_v._DeStefano):

Ricci v. DeStefano is a lawsuit brought against the city of New Haven, Connecticut by 18 city firefighters alleging that the city discriminated against them with regard to promotions. In April 2009, the Supreme Court of the United States began hearing the case. The case concerns firefighters in New Haven, Connecticut, who passed their test for promotions to management, who claim they were denied the promotions because they were white and Hispanic.

At the center of the case is New Haven's 2003 promotion exams to select firefighters for 15 open captain and lieutenant positions within the fire department. One hundred eighteen candidates took the test, 27 of them black. After the tests were scored, no blacks scored high enough to qualify for consideration for the promotions. In response, the city decided not to promote anyone, citing the Civil Rights Act of 1964.

Eighteen white test takers who would have qualified for consideration for the promotions, including one who is part Hispanic, sued the city, alleging reverse discrimination. The federal district court ruled for the city (DeStefano). Upon appeal, the Second Circuit Court of Appeals initially affirmed the district court's ruling, but then added a per curiam opinion which recommended review by the US Supreme Court. The US Supreme Court agreed to hear the case.

The lead plaintiff in the case is Frank Ricci, who has been a firefighter at the New Haven station for 11 years. Mr. Ricci gave up a second job to have time to study for the test. Because he has dyslexia, he paid an acquaintance $1,000 to read his textbooks on to audiotapes. Mr. Ricci also made flashcards, took practice tests, worked with a study group, and participated in mock interviews. His hard work at studying resulted in him getting the 6th highest score, among 77 people who took the test. The city of New Haven scrapped the test results for fear of a would-be Title VII disparate impact lawsuit brought by minority firefighters.

You can bet the Republicans are going to force her to answer for her opinion in the confirmation hearings. Public opinion will almost surely be against her decision. Won't it be hard to confirm her for the Supreme Court if it reverses her in the middle of her confirmation?

Of course, the bottom line is that the Democrats have the votes to do this if they want. But they also don't need to take a PR hit - if they perceive her confirmation as hurting their popularity, they may demand another candidate. I guess we'll see.

Hentor the Barbarian

05-26-2009, 01:00 PM

It's not limited to those of the opposite age,color,sex, or religion either.I'm trying to discern the point of this comment, because it is patently obvious, but does not in any way negate Voyager's point. Were you simply trying to amplify the point? If so, you have succeeded.

Diogenes the Cynic

05-26-2009, 01:09 PM

Here's a negative assessment of her from that bastion of the right, The New Republic (http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085):

The biggest problem for her nomination is going to be the current Supreme Court review of her ruling in Ricci v. DeStefano, It's entirely possible that the Supreme Course will reverse her. And this is a potentially explosive political issue. In this case, a fire department held exams for promotion, and after the results of the exam came in, they canceled the promotion because not enough minorities passed the exam. The firemen who studied like crazy for it and passed sued the fire department, and a panel that included Sotormayor ruled against the firefighters.

From Wikipedia (http://en.wikipedia.org/wiki/Ricci_v._DeStefano):

You can bet the Republicans are going to force her to answer for her opinion in the confirmation hearings. Public opinion will almost surely be against her decision. Won't it be hard to confirm her for the Supreme Court if it reverses her in the middle of her confirmation?

Of course, the bottom line is that the Democrats have the votes to do this if they want. But they also don't need to take a PR hit - if they perceive her confirmation as hurting their popularity, they may demand another candidate. I guess we'll see.
There won't be a PR hit. This is an extremely easy question to answer. There was no discrimination. It might not have been nice or fair to cancel the promotions, but it didn't meet the legal definition of discrimination, since there was no difference in how any proteced groups were treated. The lower court hearings will be upheld by the Supreme Court. It's the correct decision on the law. Ricci was not discriminated against. He was treated the same as everyone else.

It sounds like you would have preferred her to ignore the letter of the law and make a decision based on sympathy instead.

Sinaijon

05-26-2009, 01:16 PM

There was no discrimination. It might not have been nice or fair to cancel the promotions, but it didn't meet the legal definition of discrimination, since there was no difference in how any proteced groups were treated.

They fire department canceled the promotions because of the skin color of the applicants who passed the test. That is discriminatory. You can argue that it's justified, but it's still discriminatory.

Marley23

05-26-2009, 01:21 PM

Here is a New York Times summary of some major decision Sotomayor has been involved in. (http://www.nytimes.com/interactive/2009/05/26/us/0526-scotus.html) I'm not impressed with some of these, but I wonder about the completeness of the summaries. I wish I had some time to look these over, but that's not likely to happen for me soon.

Sinaijon

05-26-2009, 01:36 PM

Here is a New York Times summary of some major decision Sotomayor has been involved in.

Judge Sotomayor rejected a claim that a New York ban on a martial arts weapon (a nunchuka) violated a man's Second Amendment rights

WHAT?!?! She's anti-ninja??? No way will she get confirmed!

elucidator

05-26-2009, 01:43 PM

I don't think she'll sail, with one proviso. I think the Forces of Darkness are spoiling for a fight, any fight, that will energise their flagging ardor (though I hope they check with their doctors to assure that they are healthy enough for political activity).

If another issue arises for them to circle about with hue and cry, then she may sail through by the sheer power of being less significant. By all accounts, she is only somewhat liberal, if she were as lefty as "Fat Tony" Scalia is righty, they would beshit themselves most mightily, regardless.

So, if they have another issue to rally around (and it could be damn near anything...), they will focus their waning fire upon that. Failing that, they will continue to tear their hair and shriek about the horror of empathy.

Kimmy_Gibbler

05-26-2009, 01:59 PM

Won't it be hard to confirm her for the Supreme Court if it reverses her in the middle of her confirmation?

Do Justices have to quit when their opinions don't command a majority and they file a dissent? Please say yes, because if so, Scalia is a goner.

Diogenes the Cynic

05-26-2009, 02:04 PM

They fire department canceled the promotions because of the skin color of the applicants who passed the test. That is discriminatory. You can argue that it's justified, but it's still discriminatory.
No it isn't, actually. Sorry to bust your bubble, but it isn't. Discrimination requires a showing that groups were treated differently.

Voyager

05-26-2009, 02:06 PM

It's not limited to those of the opposite age,color,sex, or religion either.
So?

RickJay

05-26-2009, 02:11 PM

No it isn't, actually. Sorry to bust your bubble, but it isn't. Discrimination requires a showing that groups were treated differently.
Suppose the Birmingham, AL fire department had held a similar test and, finding that none of the white applicants made it and all those who did make it were black, they had cancelled the promotions. Is that discrimination?

I mean, get serious; this isn't one of those things where you make up your own definition of a commonly accepted term, is it? People have been using the bullshit "They weren't treated differently, we just changed the rules to conveniently prevent some people of a certain color from getting ahead" excuse since before you were born. It's always been bullshit, always will be.

What's next, anti-gay-marriage laws aren't discriminatory because everyone can marry someone of the opposite sex?

Sitnam

05-26-2009, 02:16 PM

What about Sotomayor's so called arbitrary limitations on free speech in that thou shalt not call high school administrators 'douchebags' on a personal and independent internet blog without facing reprisal?

RickJay

05-26-2009, 02:17 PM

And what is 'empathy' if not bias towards one side of a legal dispute?
You really need to look up what "empathy" means.

It's also worth noting that a person without empathy is by definition a psychopath. I'd hope all judges are possessed of the ability to use empathy.

Diogenes the Cynic

05-26-2009, 02:19 PM

Suppose the Birmingham, AL fire department had held a similar test and, finding that none of the white applicants made it and all those who did make it were black, they had cancelled the promotions. Is that discrimination?
No.
I mean, get serious; this isn't one of those things where you make up your own definition of a commonly accepted term, is it?
Not on my part.

DSYoungEsq

05-26-2009, 02:35 PM

No. There are 99 Senators right now, which means it takes only 59 to break a filibuster.

I'm sorry, but as I understand it, that's not clearly true. Indeed, a solid argument exists that it is 60 Senators no matter how many are actually seated. If you have some precedent, or Senate Rule language to the contrary, I'd be interested to see it. :)

Kimmy_Gibbler

05-26-2009, 02:35 PM

Originally Posted by RickJay
Suppose the Birmingham, AL fire department had held a similar test and, finding that none of the white applicants made it and all those who did make it were black, they had cancelled the promotions. Is that discrimination?
No.

Suppose a bank, finding that all the homeowners in a given neighborhood are black and that none of the homeowners are white, decided to stop lending to current and prospective residents of that neighborhood. Is that discrimination?

Does the Supreme Court often grant cert to cut-and-dried questions of law?

Is biting the bullet, although it demonstrates an admirable consistency, ever a really effective rhetorical maneuver?

Marley23

05-26-2009, 02:39 PM

I'm sorry, but as I understand it, that's not clearly true. Indeed, a solid argument exists that it is 60 Senators no matter how many are actually seated. If you have some precedent, or Senate Rule language to the contrary, I'd be interested to see it. :)
That was my general understanding, but I don't know for sure. As much as the press likes to talk filibusters at any given opportunity (and it trickles down to the SDMB), I don't think one is likely in any case. I don't see Snowe or Collins joining in for starters.

Diogenes the Cynic

05-26-2009, 02:39 PM

Suppose a bank, finding that all the homeowners in a given neighborhood are black and that none of the homeowners are white, decided to stop lending to current and prospective residents of that neighborhood. Is that discrimination?
Not if they stop lending to everybody.

In the case in question, it wasn't as if NO minorities passed the test, just not as many as they wanted. Those minorities who passed got denied the promotions the same as the whities. No discrimination.
Is biting the bullet, although it demonstrates an admirable consistency, ever a really effective rhetorical maneuver?
I don't know what this question means.

DSYoungEsq

05-26-2009, 02:40 PM

No it isn't, actually. Sorry to bust your bubble, but it isn't. Discrimination requires a showing that groups were treated differently.

No, actually, it doesn't, but that's ok.

Diogenes the Cynic

05-26-2009, 02:45 PM

DSYoungEsq

05-26-2009, 02:46 PM

Not if they stop lending to everybody.

In the case in question, it wasn't as if NO minorities passed the test, just not as many as they wanted. Those minorities who passed got denied the promotions the same as the whities. No discrimination.

I don't know what this question means.

I'm sorry, Dio, but that's just nonsense. They took an action based upon the results being not what they wanted in re: race of the people who passed. Many blacks pass = accept results. Few blacks pass = don't accept results.

The discrimination is clear on the face. Indeed, the court concedes as much, IIRC, and simply says that the discrimination in question was necessary to avoid the possibility of discriminating against the black applicants through flawed testing, which would be a violation of the Constitution's Equal Protection clause.

DSYoungEsq

05-26-2009, 02:47 PM

Actually it does, but that's ok. If it cannot be shown that these firefighters were denied promotions because of their race (and it cannot, because minorities were denied promotions as well) then there is no discrimination.

It's called disparate impact. You don't have to be black and white, nor do your reasons have to be intentionally discriminatory.

Kimmy_Gibbler

05-26-2009, 02:47 PM

Not if they stop lending to everybody.

In the case in question, it wasn't as if NO minorities passed the test, just not as many as they wanted. Those minorities who passed got denied the promotions the same as the whities. No discrimination.

Why do you think they cancelled the promotions?

Some think they cancelled the promotions because the promotion class didn't have the right racial makeup. Then they are treating candidates differently according to race. If candidates of the favored group pass, promotions will be offered to them and others. If not enough candidates of the favored group pass, nobody gets promotions. The existence of promotion class depends only on the performance of candidates of the favored group; the performance of the other candidates is for naught, unless the favored group has suitable performance.

Why is this rôle of the favored group as kingmaker, so to speak, not an instance of differential treatment?

Spavined Gelding

05-26-2009, 02:55 PM

Mr Moto, you understand that the Duke Rape Cases never went to trial at all and were dismissed by the state’s attorney general before trial. Since the cases never got to trial they hardly seem a fair example of the application of some sort of judicial empathy standard.

With respect to medical negligence cases (and all other personal injury cases) the critical factor in the presentation of the case is to persuade the jury (twelve men good and true, but probably not all that excited about being here) that the plaintiff is a decent and respectable person who deserves to have his injury generously compensated. It is axiomatic that if a jury doesn’t like the person before it the jury will screw them. That is simple trial tactics and the marshaling of evidence, not some exercise in judicial empathy.

If the trial judge were to instruct that the jury should cut the one party or the other some slack because he had a tough life your contention might have some merit, and even more if some appellate court failed to reverse for that instruction. Don’t confuse the persuasion and salesmanship of a jury trial with the things that go on in the appellate review of those decisions. Any trial lawyer looks for a sympathetic jury and tries to persuade a jury to be sympathetic, on both sides of the case. That has nothing to do with whether or not the appeal judge is empathetic.

Captain Carrot

05-26-2009, 03:01 PM

That was my general understanding, but I don't know for sure. As much as the press likes to talk filibusters at any given opportunity (and it trickles down to the SDMB), I don't think one is likely in any case. I don't see Snowe or Collins joining in for starters.

The press talks filibusters because the Republicans have been filibustering everything for the past two and a half years. Besides, Nelson and Bayh can counter Snowe and Collins.

Marley23

05-26-2009, 03:12 PM

The press talks filibusters because the Republicans have been filibustering everything for the past two and a half years.
They had more than enough people to do it before.
Besides, Nelson and Bayh can counter Snowe and Collins.
You think Nelson and Bayh will vote in favor of a filibuster here?

Lantern

05-26-2009, 03:45 PM

Here's a negative assessment of her from that bastion of the right, The New Republic (http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085):

You do know that piece has been roundly lambasted, right? Here is Romesh Ponnuru writing in that bastion of the left, The National Review (http://corner.nationalreview.com/post/?q=YmM0YmE5MjFkZjFjMzQ0M2ZiY2IzMzAwNTI0NjRlMDE=):
Rosen's article on Sotomayor wasn't a particularly inspiring example of journalism as traditionally practiced. I wouldn't have run such a story myself. It had a bunch of unnamed sources saying that she's dumb without giving any examples of said dumbness in action, and it didn't do much to provide context or the other side of the story.

Even Rosen is trying to walk back from his article and now (http://blogs.tnr.com/tnr/blogs/the_plank/archive/2009/05/26/the-sotomayor-nomination.aspx)says that "Of course, Judge Sotomayor should be confirmed to the Supreme Court."

Squink

05-26-2009, 03:45 PM

RNC fumbles Sotomayor talking points (http://thehill.com/leading-the-news/rnc-fumbles-sotomayor-talking-points-2009-05-26.html)
They're mostly the expected boilerplate - "Republicans are the minority party, but our belief that judges should interpret rather than make law is shared by a majority of Americans", however there are a few oddities:

Additional Talking Points

Justice Souter’s retirement could move the Court to the left and provide a critical fifth vote for:
...
Judicial micromanagement of the government's war powers.

Lantern

05-26-2009, 03:54 PM

As to the main question, barring some massive revelation I think Sottomayor will be confirmed fairly easily. She is obviously capable and has a wide range of legal experience; wider I believe than anyone currently sitting on the court. She was nominated by George HW Bush so it's going to be hard to paint her as some extremist. And if the Republicans put up a huge fight it will hurt them with Hispanics and possibly women as well.

Scotusblog (http://www.scotusblog.com/wp/the-dynamic-of-the-nomination-of-sonia-sotomayor/)has a great analysis of the nomination and he predicts an easy confirmation.

Kimmy_Gibbler

05-26-2009, 04:06 PM

She is obviously capable and has a wide range of legal experience; wider I believe than anyone currently sitting on the court.

I like the lady too, but what is your basis for this claim of wider legal experience than anyone on the Court? It seems like a bit of needless puffery to me.

Captain Carrot

05-26-2009, 04:07 PM

You think Nelson and Bayh will vote in favor of a filibuster here?They've been complete assholes for the past four months, so I think it's quite possible.

Lantern

05-26-2009, 04:16 PM

I like the lady too, but what is your basis for this claim of wider legal experience than anyone on the Court? It seems like a bit of needless puffery to me.
It was one of the blogs I think though I can't find it now; basically she has been a commercial litigator, prosecutor, trial judge and appellate judge.

BrainGlutton

05-26-2009, 09:03 PM

Here's a negative assessment of her from that bastion of the right, The New Republic (http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085):

Ah, yes . . . (http://tpmdc.talkingpointsmemo.com/2009/05/anatomy-of-the-unsuccessful-sotomayor-whisper-campaign.php?ref=fpblg)

The anatomy of the Sotomayor whisper campaign is pretty straightforward. Once it was obvious that she was a serious contender, an unknown number of Second Circuit prosecutors and former clerks banded together and approached The New Republic's legal correspondent Jeffrey Rosen with attacks on the prospective nominee's fitness.

The sources told Rosen, among other things, that Sotomayor lacked the intellectual heft and good manners to serve on the court, and, in an article billed as the first in a series analyses of potential nominees, Rosen went with it.

From there, the attacks went viral.

Conservatives echoed the anonymous complaints (National Review's Mark Hemingway called the summa cum laude Princeton graduate and Yale Law Journal editor "dumb and obnoxious") and beltway journalists cited them as evidence that her Supreme Court fate was suddenly in jeopardy.

Rosen soon returned to the website of The New Republic--this time on their blog--to defend all aspects of his original article (with the exception of its breathless headline: "The Case Against Sotomayor" which he blamed on the magazine's editorial staff).

But in that very post, he changed his tone dramatically, writing, "Sotomayor is an able candidate--at least as able as some of the current Supreme Court justices--and if Obama is convinced she is the best candidate on his short list, he should pick her."

Richard Parker

05-26-2009, 09:48 PM

I like the lady too, but what is your basis for this claim of wider legal experience than anyone on the Court? It seems like a bit of needless puffery to me.

I guess it depends on what we mean with the width metaphor. Many of the justices have varied legal backgrounds, having worked in both the public and private sector as well as in academia before the federal bench. But few did all of those things and stayed in each position as long as Sotomayor. She made partner at her firm. She worked for five years as a prosecutor (arguably a less redundant experience than working for the AG or SG) and has been a federal judge for sixteen--more than anyone other sitting justice served before appointment. She doesn't necessarily have more lines on her legal resume than the sitting justices, but none have more than she and none match the depth of experience especially as a judge.

Hamlet

05-26-2009, 09:59 PM

Interesting that he picked a Latina. I would hope that a white male with the richness of his traditional American values would reach a better conclusion in most cases than a Latina woman who hasn't lived that life.It always saddens me everytime that a new justice is appointed to serve on the Supreme Court, because, within hours, there are thousands, nay millions of people, who, rather than looking seriously at the person's jurisprudence, seek for a quote to be taken out of context to support they're predisposition about the nominee.

It's pathetic.

Starving Artist

05-26-2009, 11:40 PM

I haven't seen this (http://www.youtube.com/watch?v=OfC99LrrM2Q) discussed yet. In it, she states her acknowledgement that appeals courts serve as the platform for judical activism ("because it is...because Court of Appeals is where policy is made"), and then, upon realizing that her words are being recorded for posterity, exposes her arrogance and hypocrisy by jokingly acknowledging (for the benefit, apparently, of stupid, naive laymen) that that is not supposed to be the case.

(It's interesting to note the laughter that her inadvertent admission and the realization that she has just spoken out loud what everyone knows to be the case but pretends to be otherwise elicits from her audience of law students and professors.)

To paraphrase Burt Reynolds from the movie Rough Cut: "I've only known this woman for minutes and already I don't like her for years." :D

Richard Parker

05-26-2009, 11:46 PM

That you could post that after Hamlet's post without any sense of irony is amazing.

Starving Artist

05-26-2009, 11:58 PM

Not really all that amazing considering I only made it approximately half way through the thread before skimming the rest to see if the subject had come up. Since I was skimming for mention of the appeals court remark and Hamlet's post contains none, I never took note of what he had to say.

Now, having said that I fail to see what bearing it has on what I said. The quote was not taken out of context, and her embarrassed flailings once she realized that she had said out loud what was clearly supposed to be kept under wraps, exposed both her judicial arrogance and her hypocrisy.

Hence my assessment of her which until a few minutes ago had been relatively neutral.

Richard Parker

05-27-2009, 12:05 AM

Uh huh. Did you take a serious look at her jurisprudence? Do you know what impact litigation is, or were you ignorant of the context of her remarks? Were you predisposed to like a Democrat's nominee? Seems to me that Hamlet has you pegged.

Starving Artist

05-27-2009, 12:16 AM

It goes without saying that you think Hamlet's post has me pegged, but that doesn't make it so.

To answer your question, no, I'm not versed in impact litigation. Is it your position that impact litigation is a specialized area of law in which the courts are supposed to "make policy"? And if this is the case, why was she so clearly embarrassed about being caught out making the admission?

It seems quite clear to me that her behavior belies the idea that such appeals court policy-making is on the up-and-up.

But I'd be happy to consider whatever you have to say to the contrary.

Diogenes the Cynic

05-27-2009, 12:22 AM

She said she didn't support or advocate policy being made in appeals courts, just ackowledge that it's sometimes a reality (especially when it comes to conservative justices inventing things like "ceremonial deism").

Don't waste your powder, SA, she's going to sail through. She's more qualified than anyone else on the SC. If the best the smear machine can do is find a few 8 year old quotes of her talking about racial diversity, or saying she recognizes that "policy" can be made by appellate courts, she'll sail through without a scratch. It's not like the Senate Republicans will have a chance to smear her at the hearings without her being able to respond. She'll have ready answers, and she'll kick their asses on all their bullshit talking points.

By the way, is Limbaugh completely out of his mind these days or what? I saw a clip where he was calling both Sotomayor and Obama "reverse racists." What a nutjob.

Starving Artist

05-27-2009, 01:08 AM

She said she didn't support or advocate policy being made in appeals courts...If she said that I must have missed it. In the clip I linked to she was clearly explaining to her audience that judicial defense funds want people with appeals court experience because court of appeals is where policy is made, and then upon realizing what she had just said, backtracked and lamely stated that she didn't support or promote it.

But the problem is that she clearly views this as standard operating practice, and certainly seems to have no problem with it.

Don't waste your powder, SA...Probably good advice. :)

Still, these kinds of things have an influence on how a person views a politician's or a judge's performance in office. You might have noticed that I've been relatively quiet about Obama for instance. This is because I have come to view him as a good and thoughtful man and one who strives to make the right decisions. It is also because I have been relatively happy with certain decisions he's made with regard to Iraq, Afghanistan and Gitmo, and because, like I had hoped, once he'd found himself in office and in the role of president to all of us, he is governing from a more moderate position than one might have expected from someone with his liberal history.

So I'd like to feel the same way about whoever winds up on the Supreme Court, and it would go a long way toward making me feel that way if I felt I could count on the new justice to apply the law rather than create it. Judicial activism (or policy-making) has been a loophole through which politicians and ideologs have been able to circumvent the legislative process and enact laws that would never have been passed if left to the legislature or popular vote. It is not my opinion that the founding fathers intended for Supreme Court justices, answerable to no one and in office for life, to be a law-making body. Such a notion clearly flies in the face of all the protections that they wrote into the Constitution to protect us from being ruled by government fiat, and I'm against it no matter which side engages in it...although it seems to me that, historically, liberals have been the ones who tend to favor judicial activism, whereas conservatives have tended toward a more literal interpretation of laws as written.

By the way, is Limbaugh completely out of his mind these days or what? I saw a clip where he was calling both Sotomayor and Obama "reverse racists." What a nutjob.I couldn't say what Limbaugh is up to because I don't listen to him, and so far I haven't seen much from Obama that would cause me to think of him as a reverse racist, but I think when Sotomayor says that she "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", link (http://www.nytimes.com/2009/05/15/us/15judge.html), it does not strain credulity that some would find that kind of view to be both sexist and racist. I have no doubt that if a white (and let's face it, conservative) male had said the same thing, the howls of outrage coming from the left would be deafening.

Diogenes the Cynic

05-27-2009, 01:38 AM

That quote was taken out of context, unsurprisingly.

Starving Artist

05-27-2009, 02:05 AM

Snowboarder Bo

05-27-2009, 02:33 AM

How so? It appeared in the New York Times and it was written by Pulitzer Prize-winning reporter Charlie Savage. If you know of and can post what she said within the proper context - assuming a different context exists, of course - I would be happy to read it.It's right below your first quote, but you didn't quote that part.

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.”I have no problem with a judge who is constantly questioning herself and her motives, prejudices, sympathies, etc. in an effort to achieve impartiality. I have no problem with a judge who questions whether it can be achieved, yet still strives for it. that sounds like a smart way to go thru life: constantly assessing one's motives and actions to see if you are living up to the ideal you strive for.

As it stands though, I thought the following quotes of Sotomayor's which also appear in Savage's article bear mention:

“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.”

“And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

“Personal experiences affect the facts that judges choose to see”

It's beginning to appear that Sotomayor is not a jurist who will seek to keep her personal prejudices, beliefs and observations about life out of her interpretations of the law.
As I quoted above, she strives for impartiality. The last paragraph of your cite:

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.

All judges rule to some degree based on their own life experience. How in the world could they not? Heck, that's in your cite too:

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."

I have never heard of this lady until today. I have no axe to grind for or against her. But I am for reasoned, well-informed debate, and I'm just not seeing anything where she has said she will rule how she wants to rule, the law be damned! Instead, just based on your cite, I see a woman who is always trying to make sure that she has made the best, most rational decision possible within, and with respect to, the law. I see that she is always questioning whether her own life experience has shaded her perceptions such that she is unable to be impartial. (Hopefully if she finds that the answer is "yes" in some case, she would recuse herself.)

I'm okay with that kind of thing in a judge.

Starving Artist

05-27-2009, 03:27 AM

It's right below your first quote, but you didn't quote that part.The reason I didn't quote it was that to me it didn't seem to speak to what Dio was alleging. Normally when a quote is said to have been taken out of context, what that means is that a snippet has been culled from a larger, encompassing statement and made to appear to say something quite different than what was meant by the original statement. The information in the article which followed the quote I posted was really little more than a fleshing out of the thinking behind that quote.

I have no problem with a judge who is constantly questioning herself and her motives, prejudices, sympathies, etc. in an effort to achieve impartiality. I have no problem with a judge who questions whether it can be achieved, yet still strives for it. that sounds like a smart way to go thru life: constantly assessing one's motives and actions to see if you are living up to the ideal you strive for.I agree. My problem with her though is that her other comments seem to belie that effort at impartiality. The sense one gets - which is not actually a sense at all; she has come right out and said it - is that she feels her life experience as a woman and a Hispanic gives her a superior insight as to how to interpret the law, whereas I'm of the belief that the law simply says what it says and should be applied accordingly. It seems to me that it's mostly when one is attempting to contort the law into something other than its original intent that personal experience, bias, gender and race become an influence.

As I quoted above, she strives for impartiality. The last paragraph of your cite:Yes, she pays lip service to the need to strive for impartiality, but her other statements appear to belie that. One gets the sense that, all things being equal, she's quite happy to let her experiences, biases and perspectives as a woman and a Hispanic (and, while she doesn't come right out and say it, one can't help but wonder if 'liberal New Yorker' in included in the mix) determine the outcome of her rulings.

All judges rule to some degree based on their own life experience. How in the world could they not? Heck, that's in your cite too:Indeed they do. But when you combine a declared sentiment that your experience as a woman and minority member give you a superior insight as to how to rule on matters of law with an apparent acquiesience to the notion of judicial activism, you are left with the image of a person who thinks that they know better than people who aren't women and Hispanics as to what the law means, and who is willing to bend the law to fit what that perspective tells her the law ought to mean. That is the very definition of judical activism and 'legislating' from the bench, and I think it is wrong.

I'm okay with that kind of thing in a judge.I would prefer a judge who looks at the law, and the issues before her within the context of that law, dispassionately and with the greatest effort to try to rule within the spirit of the original intent of the laws framers, rather than what her conscience or her background as a woman or a minority member tells her the law ought to say. How would you feel, for example, about a conservative Supreme Court candidate who says he feels that his experience as a white male in a society that almost invariably gives child custody and disproportionate child support to women in the event of a divorce gives him a unique perspective on how to deal with issues of law regarding womens' rights?

She has clearly said that she believes that her perspective as a woman and a minority member gives her a superior abilty to rule on issues of law than white men. That she could then say that she intends to rule without without being consciously influenced by that belief strains credulity.

DSYoungEsq

05-27-2009, 06:10 AM

Actually, she didn't say that at all. We've discussed exactly what she DID say elsewhere (earlier in this thread, actually!) and you can read it right here (http://boards.straightdope.com/sdmb/showpost.php?p=11178482&postcount=7). She is saying that, between two truly "wise" people, the person with a life experience that has involved being discriminated against would be able to make a better decision on the effect of discriminatory laws than one without that experience. She then goes on to say that you cannot look at the "old, white men" and say they cannot get it right, because they often do. In sum, a Court of old white men isn't guaranteed to get it right, isn't guaranteed to get it wrong either, and a female Latina at least has experiences that will help make decisions about things old white men don't ever have to deal with in real life. Now that's hardly what you are casting it as.

It's also why Dio says you are taking the quote out of context. ;)

MichaelQReilly

05-27-2009, 06:59 AM

Can we please, please, retire the meme that judges, especially appellate judges, should just "impartially apply the law?" Believe me, judges want applying the law to be a simple process because it makes their life easier and doesn't get their decisions review by higher courts. But guess what? It's often not that easy. In fact, the very reason that cases ascend to the appellate levels is because they defy a simple application of the law.

A quick example from my own practice. In planning and zoning decisions my state's supreme court has ruled that board members aren't allowed to exercise their own judgment in the face of expert testimony on a technically complex manner. Yet, they've also ruled that when it comes to matters involving public health, safety, and welfare the court should defer to board's decisions. I have case right now that directly implicates both issues. Tell me, please, how is a court supposed to impartially apply the law in this case where the law is contradictory? Further, inherent in any decision the court makes is a policy determination. Decide one way and you are favoring developers who buy an expert, decide the other way and boards can do whatever they want and hide behind health, safety, and welfare. Well, you say, the court could craft a new standard that tries to strike a balance between both sides. But isn't that -gasp- "legislating from the bench?"

Hentor the Barbarian

05-27-2009, 07:11 AM

I'm starting to wonder if Mr. Moto and Sam Stone posted in this thread about empathy with absolutely no idea what they themselves meant when using the term. I would still very much like to hear whether they understand there to be any difference between the terms empathy and sympathy.

I also love the idea that Starving Artist can suggest that he was initially neutral on Obama's selection for the Supreme Court. Liberals have ruined the country and caused all the ills we face, but I'll give their nominee a fair shake.

Marley23

05-27-2009, 07:24 AM

I haven't seen this (http://www.youtube.com/watch?v=OfC99LrrM2Q) discussed yet. In it, she states her acknowledgement that appeals courts serve as the platform for judical activism ("because it is...because Court of Appeals is where policy is made"), and then, upon realizing that her words are being recorded for posterity, exposes her arrogance and hypocrisy by jokingly acknowledging (for the benefit, apparently, of stupid, naive laymen) that that is not supposed to be the case.
As long as there's a negative interpretation for what she said, all's right with the world!

To me that comment appeared to be a statement of the obvious: decisions that shape policy get made at lower levels and the Supreme Court can only handle so many cases. But I was never caught up in the absurdity over "judicial activism."

Richard Parker

05-27-2009, 07:54 AM

It seems quite clear to me that her behavior belies the idea that such appeals court policy-making is on the up-and-up.

But I'd be happy to consider whatever you have to say to the contrary.

The full video is here (http://www.law.duke.edu/webcast/?match=Sonia+Sotomayor), if you want the context (though clearly you weren't interested in the full context before leaping to judgment).

She was talking to students about jobs and clerkships. She noted that if you want to work for "legal defense funds"--which is shorthand for impact litigation organizations--an appeals court is the place to get relevant experience. Impact litigation is the practice of bringing certain cases not for the effect on a particular client, but for the effect on the law and ultimately on public policy. From the NRA to the NAACP, many organizations seeking political change also do so by means of impact litigation. The DC guns case (Heller) is a classic example of this. Clients are carefully selected, and the case is managed and timed to present the best possible argument for a change (or a beneficial clarification) of the law.

Impact litigation focuses on getting into appellate courts, and that tends to be where the real battles lie, because the effect of a win in the district court doesn't have the kind of impact that an appellate court has. Additionally, anything that is in a gray enough area of law to be good fodder for impact litigation will almost inevitably be decided by an appellate court. By virtue of working with more complicated, less settled issues, appellate courts also have to employ more subjective judgment. They have less precedent to rely on. They make law in a very real sense, and that law usually has important policy consequences. In that sense, they make policy.

You're confusing "making policy" with deciding disputes based on policy. Courts undoubtedly make policy, as Sotomayor states. But that doesn't mean that judges decide based on policy preferences. She's merely saying that if you want to work go work for any of the dozen or so elite impact litigation organizations, it is very useful to have experience working for appellate judges to understand how the appellate court works, how appellate judges make decisions, etc. She's giving good and true advice.

What you mistake for embarrassment is nothing of the kind. She's recognizing that while her audience understands her meaning plainly since as law students they understand the context, the wider public might misunderstand what she means by making policy (especially if the quote is taken out of context). She is saying something that every lawyer knows, even if they don't admit it, so she sort of does so with a little wink and a nod and an acknowledgment that in the age of shrill cries of judicial activism, people will likely misunderstand what she means when she says appeals courts make policy.

Zephyurs

05-27-2009, 08:01 AM

I also love the idea that Starving Artist can suggest that he was initially neutral on Obama's selection for the Supreme Court. Liberals have ruined the country and caused all the ills we face, but I'll give their nominee a fair shake.

Better love it, because it's coming straight from the talking points engineered by the RNC that they accidentally forwarded to the media. You'll be hearing that stance a lot.

o Republicans are committed to a fair confirmation process and will reserve judgment until more is known about Judge Sotomayor's legal views, judicial record and qualifications.

Anyone have an over/under on what proportion of Senate Republicans vote to confirm her? We can take the proportion of Republicans that voted to confirm her in 1998 (5/11, corresponding to 18 or so today) as a baseline for what a fair hearing would be.

I expect that Obama calculated this move to generate the largest outrage/risk ratio. Very unlikely that Republicans will end up successful in their attempt to derail her, but at the same time she touches all the bases that set off Republicans (Hispanic! Ovaries! Empathy! Activist judge!) enough so that in their attempt to gin up outrage they'll say stupid things to alienate Hispanic people even more, and probably hit a couple other voter blocs too while they're at it.

So far, it's worked. See e.g. Inhofe wondering whether her race and gender will cloud her thought process, Limbaugh calling not only her but Obama racist. I expect this move will pay healthy dividends.

Unless, of course, Americans respond well to running against empathy.

Marley23

05-27-2009, 08:14 AM

As a reference, here are the confirmation vote tallies for the current court.

Alito: 58-42 after a failed attempt at a filibuster
Roberts: 78-22 vote
Breyer: 87 to 9
Ginsburg: 96 to 3
Thomas: 52-48
Souter: 90 to 9
Kennedy: 97 to 0
Scalia: 98 to 0
Stevens: 98 to 0

Richard Parker

05-27-2009, 08:17 AM

nevermind, tech glitch

Sinaijon

05-27-2009, 08:28 AM

It always saddens me everytime that a new justice is appointed to serve on the Supreme Court, because, within hours, there are thousands, nay millions of people, who, rather than looking seriously at the person's jurisprudence, seek for a quote to be taken out of context to support they're predisposition about the nominee.

It's pathetic.

It also saddens me everytime that a new justice is appointed to serve on the Supreme Court, because, within hours, there are thousands, nay millions of people, who, rather than looking seriously at the person's jurisprudence, support the nomination based on their predisposition about the nominator.

It's pathetic. But It's also been par for the course for the past, what, 10, 15 years?

furt

05-27-2009, 08:32 AM

It always saddens me everytime that a new justice is appointed to serve on the Supreme Court, because, within hours, there are thousands, nay millions of people, who, rather than looking seriously at the person's jurisprudence, seek for a quote to be taken out of context to support they're predisposition about the nominee.

It's pathetic.It always saddens me everytime a new political thread appears on the SDMB, because, there are twos, nay threes of people, who, rather than looking at things with a bit of humor at the issue, seek to take every post in the most serious and literal way possible with no allowance at all for sarcasm or ironic humor.

It's pathetic.

To translate: I got no big feelings about Sonia either way and I think she'll be confirmed easily; she's a garden-variety liberal. My sole intent was to see if I could trick someone into saying something stupid, and I happily succeeded.

Lighten up, Hammy.

Diogenes the Cynic

05-27-2009, 08:32 AM

It also saddens me everytime that a new justice is appointed to serve on the Supreme Court, because, within hours, there are thousands, nay millions of people, who, rather than looking seriously at the person's jurisprudence, support the nomination based on their predisposition about the nominator.
No there aren't.

John Mace

05-27-2009, 08:33 AM

The "empathy" question is a question for Obama, not for Stotomayer. It's not a criterion she's ever alleged as necessary. If they ask her what it means, all she has to say is "ask the President." I don't think that will be a fruitful avenue of questioning by Republicans, because it has nothing to do with her own words.

Come on. Obama brought it up, so one of the Pubbies is going to ask her about it. What do you suggest she do in that case?

Some Pubbies will cling (there's that word again) to her statement and try to make a big deal out of it, but I don't think the country as a whole is going to care much one way or another. Her background is simply too strong to make a case against her unless she comes across like Bork, which I can't imagine she will.

Diogenes the Cynic

05-27-2009, 08:34 AM

She's not a liberal, by the way.

Diogenes the Cynic

05-27-2009, 08:37 AM

Come on. Obama brought it up, so one of the Pubbies is going to ask her about it. What do you suggest she do in that case?
She tells them to ask the President what he meant. She doesn't have to answer for somebody else's words. The Republicans are going to get absolutely nowhere with that because it's nothing she ever said, nor does she have the ability to explain the mind of the person who did say it.

Mr. Moto

05-27-2009, 09:18 AM

She said she didn't support or advocate policy being made in appeals courts, just ackowledge that it's sometimes a reality (especially when it comes to conservative justices inventing things like "ceremonial deism").

Um, Dio, you're wrong on this one. The phrase "ceremonial deism" was coined by Eugene Rostow, dean of Yale Law School and an influential liberal. It was first cited in a Supreme Court opinion in the dissent to Lynch v. Donnelly written by Justice Brennan - again, no conservative.

Conservatives don't see a need for ceremonial deism as a workaround as they don't consider those matters of public expression of faith to be an establishment clause violation at all.

As for empathy, I am certainly aware of the need for it in the process. However, considering that the proper role of the Supreme Court is as a check on the other branches of federal government and the other federal courts, the role of empathy would be much more constrained there. Taking this too far would step on the responsibilities of other branches to do their part in crafting responsible legislation and policy.

Additionally, empathy can vary greatly from jurist to jurist. There have been some conservative legal theories that rely heavily on empathy - like original intent. These generally are less well supported even on our side of the aisle than more empirical theories like textualism.

Kimmy_Gibbler

05-27-2009, 09:31 AM

Um, Dio, you're wrong on this one. The phrase "ceremonial deism" was coined by Eugene Rostow, dean of Yale Law School and an influential liberal. It was first cited in a Supreme Court opinion in the dissent to Lynch v. Donnelly written by Justice Brennan - again, no conservative.

Conservatives don't see a need for ceremonial deism as a workaround as they don't consider those matters of public expression of faith to be an establishment clause violation at all.

As for empathy, I am certainly aware of the need for it in the process. However, considering that the proper role of the Supreme Court is as a check on the other branches of federal government and the other federal courts, the role of empathy would be much more constrained there. Taking this too far would step on the responsibilities of other branches to do their part in crafting responsible legislation and policy.

Additionally, empathy can vary greatly from jurist to jurist. There have been some conservative legal theories that rely heavily on empathy - like original intent. These generally are less well supported even on our side of the aisle than more empirical theories like textualism.

It's not very nice to use the Wikipedia without citing it, is it?

Also, if by textualism, you mean (erroneously) "strict constructionism," you are correct that it is more favored by the legal dilettantes of the right, but not by conservative jurists who much more often favor a Scalia-influenced originalism (which is what I take you to refer to by the phrase "original intent").

John Mace

05-27-2009, 09:33 AM

She tells them to ask the President what he meant.
Yeah, that would come off just peachy.

She doesn't have to answer for somebody else's words.
She doesn't have to show up for her confirmation hearings, either. But she will show up and she will answer the question. This is the real world we are talking about, not your theoretical world.

The Republicans are going to get absolutely nowhere with that because it's nothing she ever said, nor does she have the ability to explain the mind of the person who did say it.
I agree that they won't get anywhere with this, but it's just silly to argue that it's not going to come up and that she's going to somehow brush it off as something Obama said and that she has no idea what he meant.

Zephyurs

05-27-2009, 09:41 AM

Regardless of whether it's an intelligent question to ask, it's going to be asked.

Given that, Judge Sotomayor isn't going to blow it off. She'll have had one of the best PR teams in the country and ample opportunity to craft a pitch perfect response. Just saying "Obama said it, not me," even if it should be sufficient, will come off badly and like she's evading it. Instead, she'll distance herself from it initially (probably with some permutation of "Obama said it") but then return to it to explain a possible reasoning behind it.

Diogenes the Cynic

05-27-2009, 09:43 AM

Yeah, that would come off just peachy.

She doesn't have to show up for her confirmation hearings, either. But she will show up and she will answer the question. This is the real world we are talking about, not your theoretical world.

I agree that they won't get anywhere with this, but it's just silly to argue that it's not going to come up and that she's going to somehow brush it off as something Obama said and that she has no idea what he meant.
There isn't any other way she CAN answer the question. Is she supposed to pass herself off as a mindreader? They weren't her words. If they want to know what Obama meant, they need to ask Obama. Since when do SCOTUS nominees have to answer for everything the President has ever said? It's asinine to suggest she should even be asked about it.

Hamlet

05-27-2009, 09:46 AM

It always saddens me everytime a new political thread appears on the SDMB, because, there are twos, nay threes of people, who, rather than looking at things with a bit of humor at the issue, seek to take every post in the most serious and literal way possible with no allowance at all for sarcasm or ironic humor.

It's pathetic.

To translate: I got no big feelings about Sonia either way and I think she'll be confirmed easily; she's a garden-variety liberal. My sole intent was to see if I could trick someone into saying something stupid, and I happily succeeded.

Lighten up, Hammy.Look around you furt. You may indeed have been acting out of mere humor or trickery (although your "she's garden variety liberal" comment makes it pretty hard for me to believe you) , but look at the plethora of other posts and other posters, who aren't. Within minutes after I posted my lament, SA pops in to do exactly what I pointed out, without your sense of humor. And it's going on everywhere, from Rush to Steele, from New Republic to Freepers.

Simplicio

05-27-2009, 09:55 AM

There isn't any other way she CAN answer the question. Is she supposed to pass herself off as a mindreader? They weren't her words. If they want to know what Obama meant, they need to ask Obama. Since when do SCOTUS nominees have to answer for everything the President has ever said? It's asinine to suggest she should even be asked about it.

Well, she's already been in the same room as Obama at least twice, and she's still got a couple weeks to ask him what he meant if she hasn't already. Or she could just flip on CNN, since I'm sure Gibbs will be asked to explain what the President meant by the word at least two dozen times between now and the confirmation hearing.

Mr. Moto

05-27-2009, 10:00 AM

It's not very nice to use the Wikipedia without citing it, is it?

If you want a cite, just ask for it. I remembered this because I posted about it before.

Non-Wiki cite. (http://pewforum.org/docs/?DocID=335)

Mr. Moto

05-27-2009, 10:03 AM

It's asinine to suggest she should even be asked about it.

Well, he said he was going to pick someone with empathy, and he picked her. Now, forgive me for thinking this, but when this was made a criterion right off the bat, it makes me think it might come up.

Diogenes the Cynic

05-27-2009, 10:03 AM

Well, she's already been in the same room as Obama at least twice, and she's still got a couple weeks to ask him what he meant if she hasn't already. Or she could just flip on CNN, since I'm sure Gibbs will be asked to explain what the President meant by the word at least two dozen times between now and the confirmation hearing.
"That subject has not come up in any of my discussions with the President. I am not familiar with the quote you're referring to. No, I have not seen the clip. If you want to know what the President meant, you'll have to ask the President. I would not presume to speak for him. I'm here to discuss and defend my own words and record. Next question."

Diogenes the Cynic

05-27-2009, 10:06 AM

Well, he said he was going to pick someone with empathy, and he picked her. Now, forgive me for thinking this, but when this was made a criterion right off the bat, it makes me think it might come up.
I'm sure they'll try, but it will go nowhere because it's nothing she herself ever said.

When did "empathy" become such a dirty word, by the way? Do Republicans really think that being the anti-empathy party is such a great strategy?

ETA, I didn't say she wouldn't be asked, I said she shouldn't.

Bricker

05-27-2009, 10:40 AM

In the case in question, it wasn't as if NO minorities passed the test, just not as many as they wanted. Those minorities who passed got denied the promotions the same as the whities. No discrimination.

Do you ever get tired of spouting off confident-sounding assertions without actually checking your facts?

118 candidates took the tests for fifteen open lieutenant and captain billets. Twenty-seven of the candidates were African-American. No African-American candidates scored high enough to qualify for consideration for the promotion to either lieutenant or captain. In response, the city decided not to promote anyone, citing the Title VII of the Civil Rights Act of 1964.

Now, you're right in your conclusion: the city's decision was race-neutral. And if acting in good faith to avoid Title VII liability triggers Title VII liability, we have an obvious problem. But the reviewing panel did not simply accept this reasoning; they looked independently at the issue and concluded that the race-neutral explanation offered by the city was valid. In short, although it sucks to be a firefighter that passed the exam and got nothing, it's not an injury that's addressed by Title VII.

And this brings me to my main point of ire: the reporting on this issue all has to do with the ultimate result: because no black candidates passed, the city declined to promote anyone. Isn't that just awful?

Well, yeah - it is, actually. It's poor policy, in my view. But that's entirely irrelevant to the question the court had to answer, which was: did the test-passing firefighters, by being denied promotions, have a cause of action under Title VII? No. They didn't. Title VII is not intended to be a panacea to fix all wrongs; to reverse all poor decisions. Just because a government decision is boneheaded does not mean that the courts can fix it.

furt

05-27-2009, 11:07 AM

Look around you furt. You may indeed have been acting out of mere humor or trickery (although your "she's garden variety liberal" comment makes it pretty hard for me to believe you) , but look at the plethora of other posts and other posters, who aren't. Within minutes after I posted my lament, SA pops in to do exactly what I pointed out, without your sense of humor. And it's going on everywhere, from Rush to Steele, from New Republic to Freepers.What part of "garden-variety liberal" is an insult -- The part that means "unremarkable, ordinary," or the "liberal" part? If it makes you feel better, substitute "run-of-the-mill progressive" or "person who holds views quite common among those left-of-center" or "solid but non-extremist Democrat."

As for the rest ... partisan jackasses are partisan jackasses. If after ten years and 7,000 posts your instinct is to lump me in with SA and Rush Limbaugh, nothing I say here is going to change your mind.

For my own sake, I will show some respect and take it as a given that you were every bit as annoyed at the idiotic kneejerk "he's a rightwing fascist" responses to the Roberts and Alito nominations as you are at the idiotic kneejerk responses to Sotomayor.

Hamlet

05-27-2009, 11:20 AM

What part of "garden-variety liberal" is an insult -- The part that means "unremarkable, ordinary," or the "liberal" part? If it makes you feel better, substitute "run-of-the-mill progressive" or "person who holds views quite common among those left-of-center" or "solid but non-extremist Democrat."In part it was the "insult". I think a vast majority of people wouldn't want a "garden variety liberal" as that term is widely used, to be a Supreme Court justice. Many people would expect just a bit more from someone who may sit on the highest court in the land. Perhaps to you, a "garden variety liberal" means "highly educated, well versed legal scholar", but it really doesn't scream that to me.

But, in addition to that, it was drawing a conclusion without explaining one iota how you reached it. Now, to me, it appears you decided she was a "garden variety liberal" solely because she was nominated by Obama, and not after looking at her jurisprudence, her decisionmaking, or even her political involvement. Maybe you spent time looking over her decisions and I missed it, but it seemed to me that you, like those I was chastising, had made up your mind about her based on very little evidence.

It is entirely possible that I have assumed too much and, indeed, you have gained your position through thougtful contemplation and research. And, if so, I apologize.

DSYoungEsq

05-27-2009, 11:24 AM

No there aren't.

Of course there are. The vast majority of the population of this country won't care to look at her decisions, read her opinions, etc. They will decide that it's a "good"/"bad" pick based solely upon their political leanings and the fact that the current President is a Democrat.

It's the same sort of political approach that creates the "straight ticket" method of voting.

furt

05-27-2009, 12:00 PM

In part it was the "insult". I think a vast majority of people wouldn't want a "garden variety liberal" as that term is widely used, to be a Supreme Court justice. Many people would expect just a bit more from someone who may sit on the highest court in the land. Perhaps to you, a "garden variety liberal" means "highly educated, well versed legal scholar", but it really doesn't scream that to me.As I think you know full well, I wasn't describing her qualifications, I was describing her philosophical and political orientation. AFAIK she is perfectly qualified and I have not implied otherwise.

But, in addition to that, it was drawing a conclusion without explaining one iota how you reached it. Now, to me, it appears you decided she was a "garden variety liberal" solely because she was nominated by Obama, and not after looking at her jurisprudence, her decisionmaking, or even her political involvement. Maybe you spent time looking over her decisions and I missed it, but it seemed to me that you, like those I was chastising, had made up your mind about her based on very little evidence. IANAL, so slogging through her court writings myself is likely to be a waste of time, if not downright counterproductive. I have read thoughtful opinions about her written by about ten different people who are lawyers or law professors, some who like her and some who don't (which is, I reckon, about as much research as half of congress will do), and I have, so far, drawn the conclusion that she is

1) a solid liberal, who can be counted on to vote with Stevens and Ginsburg and against Thomas and Scalia the large majority of the time, and who has little chance of giving Obama reason to regret the pick

but

2) not some sort of flag-waving "viva la revolucion" extremist that will be an icon of the Nader/Kucinich/Barbara Lee/Bernie Sanders left.

Hence my description. If you think I'm wrong on either count, please say so; if not, our disagreement is merely semantic.

Bricker

05-27-2009, 12:01 PM

Of course there are. The vast majority of the population of this country won't care to look at her decisions, read her opinions, etc. They will decide that it's a "good"/"bad" pick based solely upon their political leanings and the fact that the current President is a Democrat.

It's the same sort of political approach that creates the "straight ticket" method of voting.

Exactly correct.

Bricker

05-27-2009, 12:02 PM

1) a solid liberal, who can be counted on to vote with Stevens and Ginsburg and against Thomas and Scalia the large majority of the time, and who has little chance of giving Obama reason to regret the pick

How do you feel about her abortion program funding ruling? How does that square with the "solid liberal" view?

Starving Artist

05-27-2009, 01:27 PM

The full video is here (http://www.law.duke.edu/webcast/?match=Sonia+Sotomayor), if you want the context (though clearly you weren't interested in the full context before leaping to judgment).

She was talking to students about jobs and clerkships. She noted that if you want to work for "legal defense funds"--which is shorthand for impact litigation organizations--an appeals court is the place to get relevant experience. Impact litigation is the practice of bringing certain cases not for the effect on a particular client, but for the effect on the law and ultimately on public policy. From the NRA to the NAACP, many organizations seeking political change also do so by means of impact litigation. The DC guns case (Heller) is a classic example of this. Clients are carefully selected, and the case is managed and timed to present the best possible argument for a change (or a beneficial clarification) of the law.

Impact litigation focuses on getting into appellate courts, and that tends to be where the real battles lie, because the effect of a win in the district court doesn't have the kind of impact that an appellate court has. Additionally, anything that is in a gray enough area of law to be good fodder for impact litigation will almost inevitably be decided by an appellate court. By virtue of working with more complicated, less settled issues, appellate courts also have to employ more subjective judgment. They have less precedent to rely on. They make law in a very real sense, and that law usually has important policy consequences. In that sense, they make policy.

You're confusing "making policy" with deciding disputes based on policy. Courts undoubtedly make policy, as Sotomayor states. But that doesn't mean that judges decide based on policy preferences. She's merely saying that if you want to work go work for any of the dozen or so elite impact litigation organizations, it is very useful to have experience working for appellate judges to understand how the appellate court works, how appellate judges make decisions, etc. She's giving good and true advice.

What you mistake for embarrassment is nothing of the kind. She's recognizing that while her audience understands her meaning plainly since as law students they understand the context, the wider public might misunderstand what she means by making policy (especially if the quote is taken out of context). She is saying something that every lawyer knows, even if they don't admit it, so she sort of does so with a little wink and a nod and an acknowledgment that in the age of shrill cries of judicial activism, people will likely misunderstand what she means when she says appeals courts make policy.I don't have time to go into it right now and there are areas where I would disagree, but I do thank you for the explication.

furt

05-27-2009, 01:50 PM

How do you feel about her abortion program funding ruling? How does that square with the "solid liberal" view?"Solid liberal" does not equate to "liberal on every single case she ever ruled on."

Are you going to dispute my characterization that she can be "counted on to vote with Stevens and Ginsburg and against Thomas and Scalia the large majority of the time, and who has little chance of giving Obama reason to regret the pick?" Or are you just gonna play the "look, I can find a case I think you hadn't heard of" game?

Diogenes the Cynic

05-27-2009, 01:53 PM

She was a Bush Sr. pick before she was a Clinton pick. That makes me wonder how "solidly liberal" she is.

Simplicio

05-27-2009, 02:06 PM

She was a Bush Sr. pick before she was a Clinton pick. That makes me wonder how "solidly liberal" she is.

Well, Souter was a Bush Sr pick to.

Kimmy_Gibbler

05-27-2009, 02:28 PM

"Solid liberal" does not equate to "liberal on every single case she ever ruled on."

Are you going to dispute my characterization that she can be "counted on to vote with Stevens and Ginsburg and against Thomas and Scalia the large majority of the time, and who has little chance of giving Obama reason to regret the pick?" Or are you just gonna play the "look, I can find a case I think you hadn't heard of" game?

Why does asking "In this case, the nominee took an unexpected position. Does that change your assessment?" count as game playing? It seems like a fair question to me.

If you'd prefer no such follow-ups in future political threads, I'll keep a notebook called "Furt's Viewpoints". You'll announce your position on a given topic, and I will write it down there. Then we'll promptly move on to other people's posts. Would that be more to your liking?

Fotheringay-Phipps

05-27-2009, 02:32 PM

My impression is that at the entry level to the federal bench, ideology doesn't count for nearly as much as it does at the upper levels. Possibly this is because the prospective appointees don't have as much of a track record, possibly because there aren't enough ideological soulmates to go around, possibly because people feel the lower courts aren't that influential anyway, or whatever other reason. But I've noticed that a lot of judges have records of having been appointed early on by people of the opposing ideology.

More knowlegable people can correct if this is wrong.

In the case of SS, she was appointed by GHWB, but was sponsored for that appointment by D. Moynihan. I would imagine the fact that GHWB appointed her doesn't say a whole lot.

Mr. Moto

05-27-2009, 02:47 PM

Because home state Senators can have an outsize impact on the process by "blue-slipping" a nominee, during the Bush I administration (as at other times) appointments of Democrats were made to the district bench so that Republican nominees could get fair consideration.

This was done with Sotomayor - who could fairly be called a Bush appointee - but this was an accommodation to Senator Moynihan.

MovieMogul

05-27-2009, 03:11 PM

As for empathy, I am certainly aware of the need for it in the process. However, considering that the proper role of the Supreme Court is as a check on the other branches of federal government and the other federal courts, the role of empathy would be much more constrained there. Taking this too far would step on the responsibilities of other branches to do their part in crafting responsible legislation and policy. Well, I figure if empathy was a non-issue for Alito (http://www.salon.com/opinion/greenwald/2009/05/27/sotomayor/index.html) and Thomas (http://tpmdc.talkingpointsmemo.com/2009/05/flashback-george-hw-bush-on-clarence-thomas-great-empathy.php) in their nomination process, it shouldn't be an issue for Sotomayor either.

furt

05-27-2009, 03:13 PM

Why does asking "In this case, the nominee took an unexpected position. Does that change your assessment?" count as game playing? It seems like a fair question to me.That was not the question. The exact words were "How does that square with the "solid liberal" view?" Bricker knows perfectly well that it is quite possible to square one (or even two or three) conservative opinions with the idea that someone is still a "solid liberal," or vice versa; nonetheless he seemed to me to be implying that one ruling was supposed to change my overall impression of her.

Trent Lott and Elizabeth Dole vote "liberal" fully 20% of the time. (cite (http://www.nationaljournal.com/voteratings/sen/lib_cons.htm?o1=con_composite&o2=desc)). I nonethless have no problem and see no insult in calling them "solid, garden-variety conservatives."

DSYoungEsq

05-27-2009, 03:17 PM

Her voting record on the Bench is not consistent with "solidly Liberal." She is willing to vote in a way that would be consistent with Scalithomasberts at times. Obviously, the President doesn't think that she will be so likely to do so that she will end up Warrenizing on him.

furt, you have short memory. Justices Brennan and Marshall were solid liberals. No one on the Court since they left has been a "solid liberal."

Which is not to say that there aren't those who are generally liberal.

Johanna

05-27-2009, 03:23 PM

No. There are 99 Senators right now, which means it takes only 59 to break a filibuster.

Three-fifths of 99 is 59.4 -- so if I understand the rules correctly, 59.0 doesn't cut it. It's still 60 as long as we're using whole senators.

Hentor the Barbarian

05-27-2009, 04:03 PM

I'm getting the sense that the right's little "empathy: bad" trial balloon has gone down in flames.

Seems like a record, but it could be that their footsoldiers were just too ignorant on the topic for it to gain traction.

furt

05-27-2009, 05:42 PM

furt, you have short memory. Justices Brennan and Marshall were solid liberals. No one on the Court since they left has been a "solid liberal."Meh. Now we're splitting hairs about who is "solid" vs. who is "lockstep" vs. who is "predictable" or whatever you want to say.

Put it this way: One statistical analysis (http://pooleandrosenthal.com/the_unidimensional_supreme_court.htm) of the Rehnquist court's votes came up with these mathematical expression of the voting patterns.

Stevens -0.445911
Ginsburg -0.367567
Breyer -0.327401
Souter -0.3127
O'Connor 0.104212
Kennedy 0.174192
Rehnquist 0.304502
Scalia 0.403145
Thomas 0.405752

To my view, I'd say that's three "solid" conservatives, two conservative "leaners" three "solid" liberals, plus Souter who apparenlty tends to vote with the liberals, but as I understand is usually regarded as actually being kind of an anamolous.

IMO, there's nobody on the court that can credibly be called an extremist, and I don't think Sotomayor will be either.