# 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:** 5
**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, 7:40pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/81 "2009-05-26T19:40:36Z")
> [@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. No, actually, it doesn’t, but that’s ok. ---
**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, 7:45pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/82 "2009-05-26T19:45:02Z")
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. ---
**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, 7:46pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/83 "2009-05-26T19:46:33Z")
> [@Diogenes\_the\_Cynic](#): > > 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. ---
**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, 7:47pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/84 "2009-05-26T19:47:35Z")
> [@Diogenes\_the\_Cynic](#): > > 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. ---
**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, 7:47pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/85 "2009-05-26T19:47:48Z")
> [@Diogenes\_the\_Cynic](#): > > 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? ---
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [May 26, 2009, 7:55pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/86 "2009-05-26T19:55:00Z")
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. ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [May 26, 2009, 8:01pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/87 "2009-05-26T20:01:49Z")
> [@Marley23](#): > > 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. ---
**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, 8:12pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/88 "2009-05-26T20:12:19Z")
> [@Captain\_Carrot](#): > > 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? ---
**Author:** ![Lantern](https://avatars.discourse-cdn.com/v4/letter/l/d26b3c/32.png) [@Lantern](https://boards.straightdope.com/u/Lantern)\ **Post date:** [May 26, 2009, 8:45pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/89 "2009-05-26T20:45:08Z")
> [@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): 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.” ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [May 26, 2009, 8:45pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/90 "2009-05-26T20:45:32Z")
[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. ---
**Author:** ![Lantern](https://avatars.discourse-cdn.com/v4/letter/l/d26b3c/32.png) [@Lantern](https://boards.straightdope.com/u/Lantern)\ **Post date:** [May 26, 2009, 8:54pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/91 "2009-05-26T20:54:40Z")
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. ``` ---
**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, 9:06pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/92 "2009-05-26T21:06:44Z")
> [@Lantern](#): > > 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. ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [May 26, 2009, 9:07pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/93 "2009-05-26T21:07:21Z")
> [@Marley23](#): > > 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. ---
**Author:** ![Lantern](https://avatars.discourse-cdn.com/v4/letter/l/d26b3c/32.png) [@Lantern](https://boards.straightdope.com/u/Lantern)\ **Post date:** [May 26, 2009, 9:16pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/94 "2009-05-26T21:16:28Z")
> [@Kimmy\_Gibbler](#): > > 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. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [May 27, 2009, 2:03am UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/95 "2009-05-27T02:03:38Z")
> [@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): [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.” ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 27, 2009, 2:48am UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/96 "2009-05-27T02:48:16Z")
> [@Kimmy\_Gibbler](#): > > 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. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [May 27, 2009, 2:59am UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/97 "2009-05-27T02:59:17Z")
> [@furt](#): > > 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. ---
**Author:** ![Starving\_Artist](https://avatars.discourse-cdn.com/v4/letter/s/aeb1de/32.png) [@Starving\_Artist](https://boards.straightdope.com/u/Starving_Artist)\ **Post date:** [May 27, 2009, 4:40am UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/98 "2009-05-27T04:40:09Z")
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.” 😃 ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 27, 2009, 4:46am UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/99 "2009-05-27T04:46:49Z")
That you could post that after Hamlet’s post without any sense of irony is amazing. ---
**Author:** ![Starving\_Artist](https://avatars.discourse-cdn.com/v4/letter/s/aeb1de/32.png) [@Starving\_Artist](https://boards.straightdope.com/u/Starving_Artist)\ **Post date:** [May 27, 2009, 4:58am UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/100 "2009-05-27T04:58:52Z")
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. [Previous page](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675.md?page=4) [Next page](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675.md?page=6)