# Smooth sailing for Sotomayor? **URL:** \ **Category:** Great Debates\ **Created:** [May 26, 2009, 2:20pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675 "2009-05-26T14:20:12Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 26, 2009, 5:57pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/61 "2009-05-26T17:57:56Z")
> [@Gorsnak](#): > > 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. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 26, 2009, 5:59pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/62 "2009-05-26T17:59:25Z")
> [@Sinaijon](#): > > It’s not limited to those of the opposite age,color,sex, or religion either. Who said it _is_? ---
**Author:** ![Sam\_Stone](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Sam\_Stone](https://boards.straightdope.com/u/Sam_Stone)\ **Post date:** [May 26, 2009, 6:00pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/63 "2009-05-26T18:00:07Z")
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. ---
**Author:** ![Hentor\_the\_Barbarian](https://avatars.discourse-cdn.com/v4/letter/h/8edcca/32.png) [@Hentor\_the\_Barbarian](https://boards.straightdope.com/u/Hentor_the_Barbarian)\ **Post date:** [May 26, 2009, 6:00pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/64 "2009-05-26T18:00:09Z")
> [@Sinaijon](#): > > 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. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 26, 2009, 6:09pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/65 "2009-05-26T18:09:20Z")
> [@Sam\_Stone](#): > > 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. ---
**Author:** ![Sinaijon](https://avatars.discourse-cdn.com/v4/letter/s/dc4da7/32.png) [@Sinaijon](https://boards.straightdope.com/u/Sinaijon)\ **Post date:** [May 26, 2009, 6:16pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/66 "2009-05-26T18:16:10Z")
> [@Diogenes\_the\_Cynic](#): > > 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. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [May 26, 2009, 6:21pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/67 "2009-05-26T18:21:10Z")
[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. ---
**Author:** ![Sinaijon](https://avatars.discourse-cdn.com/v4/letter/s/dc4da7/32.png) [@Sinaijon](https://boards.straightdope.com/u/Sinaijon)\ **Post date:** [May 26, 2009, 6:36pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/68 "2009-05-26T18:36:47Z")
> [@Marley23](#): > > 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! ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 26, 2009, 6:43pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/69 "2009-05-26T18:43:30Z")
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. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [May 26, 2009, 6:59pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/70 "2009-05-26T18:59:13Z")
> [@Sam\_Stone](#): > > 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. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 26, 2009, 7:04pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/71 "2009-05-26T19:04:16Z")
> [@Sinaijon](#): > > 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. ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [May 26, 2009, 7:06pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/72 "2009-05-26T19:06:02Z")
> [@Sinaijon](#): > > It’s not limited to those of the opposite age,color,sex, or religion either. So? ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [May 26, 2009, 7:11pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/73 "2009-05-26T19:11:31Z")
> [@Diogenes\_the\_Cynic](#): > > 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? ---
**Author:** ![Sitnam](https://avatars.discourse-cdn.com/v4/letter/s/6a8cbe/32.png) [@Sitnam](https://boards.straightdope.com/u/Sitnam)\ **Post date:** [May 26, 2009, 7:16pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/74 "2009-05-26T19:16:07Z")
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? ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [May 26, 2009, 7:17pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/75 "2009-05-26T19:17:39Z")
> [@Sam\_Stone](#): > > 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. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 26, 2009, 7:19pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/76 "2009-05-26T19:19:26Z")
> [@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. > [@](#): > > 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. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 26, 2009, 7:35pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/77 "2009-05-26T19:35:06Z")
> [@Marley23](#): > > 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. 🙂 ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [May 26, 2009, 7:35pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/78 "2009-05-26T19:35:23Z")
> [@Diogenes\_the\_Cynic](#): > > > [@](#): > > > > 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? ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [May 26, 2009, 7:39pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/79 "2009-05-26T19:39:27Z")
> [@DSYoungEsq](#): > > 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. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 26, 2009, 7:39pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/80 "2009-05-26T19:39:43Z")
> [@Kimmy\_Gibbler](#): > > 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. [Previous page](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675.md?page=3) [Next page](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675.md?page=5)