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.
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.
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.
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.
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.
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, 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.
That quote was taken out of context, unsurprisingly.
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.
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.
It’s right below your first quote, but you didn’t quote that part.
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 I quoted above, she strives for impartiality. The last paragraph of your cite:
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:
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.
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 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.
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.
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 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.
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. 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. 
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?”
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.
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.”
The full video is here, 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.
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.
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.
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
nevermind, tech glitch
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?
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.
No there aren’t.
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.