Would it look or be good for Obama to withdraw Sotomayor's nomination?

[DSeid]

Actual data is a wonderful thing. Analysis of Sotomayor’s career shows that

in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She particulated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

Is she SC material? It sure seems so, at least more so than many others who have gone before her. Her record however belies gonzo’s hope that she will perhaps “lean toward the small man”; unfortunately she seems to shoot straight.

[Magiver]

@DrDeth

1. It doesn’t matter how huge the amount of the evidence it, it matter how good it is. 10 million pages of crap is not worth as much as one good cite.

Since this thought has been repeated I’ll address yours. If you read the dissenting judge’s opinion the court dismissed evidence and oral arguments before they were entered. It simply wasn’t considered.

This case was brought by the fire fighters who were deliberately shut out of a job based on the color of their skin (or lack thereof). There wasn’t anything vague about what happened. No matter what they did in the way of proving their qualifications the city was bound and determined to hire a specific race regardless of achievement. The idea of testing is suppose to eliminate the bias of age, gender, and race and it produces the most qualified employee. In this case, the opposite has occurred.

There is no justification for supporting this decision beyond political partisanship. Nobody on this board would accept losing a job because of the color of their skin.

[Fear_Itself]

@Magiver

Nobody on this board would accept losing a job because of the color of their skin.

So you a supporting judicial activism in this case?

[waterj2]

@Magiver

There is no justification for supporting this decision beyond political partisanship. Nobody on this board would accept losing a job because of the color of their skin.

I haven’t looked at the case in any depth, and it would be far beyond me, in any event, but I haven’t seen any criticism showing how it was wrongly decided. Whether or not people should lose a job because of the color of their skin wasn’t the question the appeals court was tasked with answering. They were asked whether the district court correctly applied the relevant law in the case. Or, would you prefer that judges decide cases using empathy, rather than strictly applying precedent?

[gonzomax]

No More Mr. Nice Guy | The New Yorker This is the article that Maher referred to last night. Toobin explains that Roberts has sided 100 % with the powers against the workers or those harmed by big companies. He is bringing his prejudices to the court. Is it acceptable because he sides with the owner class?

[Left_Hand_of_Dorkness]

A question for Shodan et al.: let’s stipulate that your reading of her remarks is correct. Do you agree with the following statements?

1. Conservative bloggers and pundits and politicians are scouring her record looking for racist decisions in it.
2. So far, they haven’t found any.

If you agree with these statements, AND if it turns out that by the hearings in a couple of months they haven’t found any, how will you account for the discrepancy between your reading of her remarks and her record as interpreted by hostile interpreters?

Daniel

[gonzomax]

Clarence Thomas On Walking In Another's Shoes (VIDEO) | HuffPost Latest News Here’s Thomas saying being black gave him a different perspective. The conservatives are desperate to find something to hang a protest of her on. Sorry, race is not it. Perspective is not it. They have nothing but noise.

[Magiver]

@Left_Hand_of_Dorkness

A question for Shodan et al.: let’s stipulate that your reading of her remarks is correct. Do you agree with the following statements?

1. Conservative bloggers and pundits and politicians are scouring her record looking for racist decisions in it.
2. So far, they haven’t found any.

If you agree with these statements, AND if it turns out that by the hearings in a couple of months they haven’t found any, how will you account for the discrepancy between your reading of her remarks and her record as interpreted by hostile interpreters?

Daniel

I would call a decision that supports job selection based on race a biased one.

[Diogenes_the_Cynic]

She has made no such decision.

[Magiver]

@Diogenes_the_Cynic

She has made no such decision.

Was she having an out of body experience at the time?

[Diogenes_the_Cynic]

At what time? There was no time.

[EddyTeddyFreddy]

@Magiver

I would call a decision that supports job selection based on race a biased one.

The firefighter decision was based not on the merits of the proposed remedy for alleged discrimination (chucking the exam as biased), but rather on the narrow ground of whether the state was legally, constitutionally able to enforce the statutory scheme which led to that result. In effect, the decision hinged on whether the federal courts would uphold an assertion of state’s rights as expressed in the legislatively created statutory scheme, or whether that state action as required under state statute would be overturned because the justices hearing the case thought there should have been a different outcome based on their beliefs as to the desired result.

In other words, do you think Sotomayor and the concurring justices should have engaged in judicial activism and legislated from the bench?

[Magiver]

@EddyTeddyFreddy

In other words, do you think Sotomayor and the concurring justices should have engaged in judicial activism and legislated from the bench?

When did authorizing bias become legislation from the bench?

[Diogenes_the_Cynic]

She didn’t authorize anything. She upheld a narrow statute as Constitutional, just like all the other judges that have reviewed this.

[DrDeth]

@Magiver

Since this thought has been repeated I’ll address yours. If you read the dissenting judge’s opinion the court dismissed evidence and oral arguments before they were entered. It simply wasn’t considered.

There was no dissenting judges opinion, the opinion of the court was 3-0. Now, there were several dissenting judges on the rehearing en banc, where the Court ruled there was no need to look at that evidence for the consideration for whether or not the 2nd Cir would rehear the case en banc, in other words where 13 Judges would rule not just 3. Since the motion for rehearing en banc not a trial, there’s no need to look at evidence then, only if another hearing was approved. You really got to read this stuff before posting, you just don’t know what you’re talking about. (And I barely do and welcome our SDMB legal eagles better explanation)

waterj2 & EddyTeddyFreddy are correct. The 2nd Cir Court was not ruling on discrimination. It was ruling on whether or not the Superior Court had applied the law correctly. The 2nd Cir court’s ruling had nothing whatsoever to do with discrimination, just with the law. Your beef is with the Superior Ct Judge who made the original dec, and you dont even know his name (nor do I). You’re just parroting various right wind pundits that have decided to make this decision of the 2nd Cir court (NOT SOTOMAYER, the Court- of which she is 1/13th!!) a way to attack Sotomayer. It’s not. The entire Court made the ruling based upon the Law. Now, once it gets to SCOTUS, they can make the larger dec.

[MovieMogul]

Ezra Klein:

But so far, most of the commentary has focused on Frank Ricci, a dyslexic firefighter who studied endlessly and hired someone to read him flash cards before a tough test that would decide a promotion. Ricci passed, but the test results were thrown out. The reason? Not enough African Americans cleared the exam, and the department worried it would be sued under Title VII. Ricci’s tale is troubling. It’s hard not to feel for him.

Ricci’s experience, however, is not related to the legal questions presented by the case. As Dylan Matthews explains at Campus Progress, Sotomayor appears simply to have addressed the question before the court: That question was whether the county had reason to believe that the test results left it vulnerable to a lawsuit. Indeed, as Dahlia Lithwick and Doug Kendall argue over at Slate, Sotomayor is being attacked for something relatively odd: Rather than empathizing with Ricci, she ruled on the legal issue at hand. And that meant ruling against Ricci.

Conservatives, thus, are in the awkward position of choosing one of two lines of attack. You can argue that Sotomayor is too empathetic to make a good justice, or you can argue that her ruling in Ricci was cold and unfair. But you can’t argue both.

Campus Progress:

The actual legal issues involved are fairly simple. As Doug Kendall and Dahlia Lithwick wrote in a Slate article earlier this month, “the only real question before the court was whether New Haven had reason to believe that if the city used the test results it would be sued under Title VII.” And given as, in Kendall and Lithwick’s words, “the results of the test far exceeded the statistical cutoff that suggests a constitutional violation has occurred,” Sotomayor and most other Second Circuit judges concluded that the city did, in fact, have cause to worry about a Title VII lawsuit.

Cohen, Will, and other critics of Sotomayor have seized upon this case to argue that she is a hard liberal with no sympathy for discriminated-against white firefighters. In particular, they have seized upon the plight of the case’s plaintiff, Frank Ricci, a dyslexic white firefighter who studied 13 hours a day and even took a second job to pay for someone to record the relevant textbooks to cassette for easier studying. Ricci earned the sixth-highest score on the exam, only to have his results invalidated along with all the other firefighters’.

While Ricci’s situation tugs at the heartstrings, neither his admirably diligent study habits nor his learning disability are relevant to the case at hand. Ruling against him does not make Sotomayor heartless. On the contrary, it shows her ability to focus on the core legal issues of a case, even when the result is politically unpalatable. That, ultimately, is what Ricci v. DeStefano can teach us about Judge Sotomayor. Even on issues that are easy to demagogue, like race and hiring, she is unafraid to make choices that may offend key constituencies or even threaten her own career. Whatever one thinks of her judicial philosophy, that kind of courage is admirable, and crucial for a Supreme Court justice.

Slate

What does Ricci’s dyslexia have to do with the law? Very little, actually. The city of New Haven threw out the results of the test he took because it feared that the examination was discriminatory. That’s because none of the African-American candidates, and only two of the 50 minority candidates, who took the test would have been eligible for promotion based on the results. Regardless of how you and I may feel about Frank Ricci or how much he deserved to be promoted, discriminatory results like that can run afoul of Title VII of the Civil Rights Act of 1964. And in this case the results of the test far exceeded the statistical cutoff that suggests a constitutional violation has occurred.

When the case was argued before the Supreme Court last month, all of the justices seemed to agree that New Haven had to comply with valid federal statutes. Mr. Ricci did not challenge the constitutionality of Title VII. So the only real question before the court was whether New Haven had reason to believe that if the city used the test results it would be sued under Title VII. Mr. Ricci’s specific circumstances—his race, his dyslexia, and his professional aggravation—have no bearing on that legal question at all…

Every time Justice Antonin Scalia writes a habeas opinion that begins with the depiction of a gruesome murder, he is evincing empathy toward the victim. When Chief Justice John Roberts battled for the rights of white schoolchildren facing arduous bus trips and educational hardship due to school integration programs in Seattle and Kentucky, he was evincing empathy for the white “victims” of affirmative action. It’s a patent falsehood that liberal judges weep and bleed for their plaintiffs while conservative jurists treat plaintiffs with stony indifference. And smart advocates on either side, knowing that, seek out “sympathetic plaintiffs” for litigation precisely because they are attempting to appeal to some part of the court’s lizard brain; the part that does more than mechanically apply the law to the case.

We all should want judges to be empathetic to the litigants before them—be they Frank Ricci, the city of New Haven, Susette Kelo, or Lilly Ledbetter. And the fact is that we all should also want judges to follow the text of the Constitution and the law, even while the realities and hardships of these real-world litigants play out in the background of the case. The notion that conservative jurists follow the law while liberal jurists emote wildly from the bench is just another political story. And repetition doesn’t make it any truer. The best judges combine empathy with adherence to the rule of law. Given that both liberals and conservatives have long sought to benefit from that fact, isn’t it high time we were all honest enough to admit it?

[Orbifold]

Remember when Senate Democrats had the crass, shocking temerity to ask Samuel Alito about his association with the Concerned Alumni of Princeton? You know, that group that explicitly advocated caps on the number of female and minority admissions to Princeton in the 1970’s? Remember how shocked, shocked, everyone was that the Democrats would go so far as to cross that line, to even hint that a Supreme Court nominee had even associated with racists? Poor Mrs. Alito in tears, that kind of thing?

The Republicans are butthurt children looking for payback, nothing more. It’s shameful and disgusting. And to answer the OP’s quite frankly preposterous question, no it would neither look nor be good for Obama to withdraw Sotomayor’s nomination in the face of this overblown temper tantrum. You don’t concede to children just because they scream.

[Shodan]

@Left_Hand_of_Dorkness

A question for Shodan et al.: let’s stipulate that your reading of her remarks is correct. Do you agree with the following statements?

1. Conservative bloggers and pundits and politicians are scouring her record looking for racist decisions in it.
2. So far, they haven’t found any.

No. 1 is true. No. 2 is not.

The idea that Latinas are better qualified by default is a racist statement.

Try this one on for size -

I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a black man who hasn’t lived that life.

Face it - if a Republican nominee had said anything similar, y’all would be blowing a gasket screaming racism.

Regards,
Shodan

[Early_Out]

@Shodan

I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a black man who hasn’t lived that life.

Face it - if a Republican nominee had said anything similar, y’all would be blowing a gasket screaming racism.

Only if we could stop laughing long enough.

[MovieMogul]

@Shodan

The idea that Latinas are better qualified by default is a racist statement.

Try this one on for size -

I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a black man who hasn’t lived that life.

Face it - if a Republican nominee had said anything similar, y’all would be blowing a gasket screaming racism.

:rolleyes: Round and round we go.