# 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:** 7
**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 27, 2009, 1:34pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/121 "2009-05-27T13:34:12Z")
She’s not a liberal, by the way. ---
**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 27, 2009, 1:37pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/122 "2009-05-27T13:37:52Z")
> [@John\_Mace](#): > > 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. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 27, 2009, 2:18pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/123 "2009-05-27T14:18:15Z")
> [@Diogenes\_the\_Cynic](#): > > 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. ---
**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 27, 2009, 2:31pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/124 "2009-05-27T14:31:59Z")
> [@Mr.Moto](#): > > 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”). ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 27, 2009, 2:33pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/125 "2009-05-27T14:33:38Z")
> [@Diogenes\_the\_Cynic](#): > > 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. ---
**Author:** ![Zephyurs](https://avatars.discourse-cdn.com/v4/letter/z/dfb087/32.png) [@Zephyurs](https://boards.straightdope.com/u/Zephyurs)\ **Post date:** [May 27, 2009, 2:41pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/126 "2009-05-27T14:41:12Z")
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. ---
**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 27, 2009, 2:43pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/127 "2009-05-27T14:43:36Z")
> [@John\_Mace](#): > > 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. ---
**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, 2:46pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/128 "2009-05-27T14:46:55Z")
> [@furt](#): > > 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. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [May 27, 2009, 2:55pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/129 "2009-05-27T14:55:23Z")
> [@Diogenes\_the\_Cynic](#): > > 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. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 27, 2009, 3:00pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/130 "2009-05-27T15:00:01Z")
> [@Kimmy\_Gibbler](#): > > 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) ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 27, 2009, 3:03pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/131 "2009-05-27T15:03:10Z")
> [@Diogenes\_the\_Cynic](#): > > 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. ---
**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 27, 2009, 3:03pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/132 "2009-05-27T15:03:27Z")
> [@Simplicio](#): > > 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.” ---
**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 27, 2009, 3:06pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/133 "2009-05-27T15:06:02Z")
> [@Mr.Moto](#): > > 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_. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 27, 2009, 3:40pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/134 "2009-05-27T15:40:19Z")
> [@Diogenes\_the\_Cynic](#): > > 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. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [May 27, 2009, 4:07pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/135 "2009-05-27T16:07:56Z")
> [@Hamlet](#): > > 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. ---
**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, 4:20pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/136 "2009-05-27T16:20:12Z")
> [@furt](#): > > 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. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 27, 2009, 4:24pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/137 "2009-05-27T16:24:32Z")
> [@Diogenes\_the\_Cynic](#): > > 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. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [May 27, 2009, 5:00pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/138 "2009-05-27T17:00:49Z")
> [@Hamlet](#): > > 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 1. 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 27, 2009, 5:01pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/139 "2009-05-27T17:01:09Z")
> [@DSYoungEsq](#): > > 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 27, 2009, 5:02pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/140 "2009-05-27T17:02:34Z")
> [@furt](#): > > 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? [Previous page](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675.md?page=6) [Next page](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675.md?page=8)