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Sonia Sotomayor and the Politics of Race

President Barack Obama announces federal appeals court judge Sonia Sotomayor, right, as his nominee for the Supreme Court, Tuesday, May 26, 2009, in an East Room ceremony of the White House in Washington. (AP Photo/Alex Brandon)

President Barack Obama announces federal appeals court judge Sonia Sotomayor, right, as his nominee for the Supreme Court, Tuesday, May 26, 2009, in an East Room ceremony of the White House in Washington. (AP Photo/Alex Brandon)

Kevin Drum notes that he’s already tired of the “kabuki” that has emerged in reaction to the nomination of Sonia Sotomayor to the Supreme Court.

I both agree that the process is predictable and tedious and that Sotomayor would seem obviously qualified for confirmation.  I would quibble, however, with this:

Conservatives, who seem constitutionally unable of viewing any non-white nominee as anything other than identity politics run wild, have already decided she’s just a crass affirmative action hire. Out of a decade-long appelate court career, the only opinion of hers they seem to have heard of, or care about, is Ricci.  And unlike all the middle class white guys on the court, who are apparently paragons of race-blind rationality, they’re convinced that she’s just naturally going to be incapable of judging any case before her as anything other than a woman and a Hispanic.

First, that she’s Hispanic and female were undeniably major factors in elevating her to the top of the short list.

Second, liberals/progressives are cheering the First Hispanic Justice angle, with Chuck Schumer openly daring Republicans to oppose the First Hispanic Justice and risk backlash from the fastest growing voting demographic.

Third, while I don’t recall any such controversy with Sandra Day O’Connor (who, frankly, was not particularly well qualified) it was widely assumed and continues to be argued to this day that Clarence Thomas (who was objectively qualified for the Court) was a token hire.

Fourth, Sotomayor has issued public statements that, while arguably true, are racially inflammatory and that would be much more controversial still if uttered by a white judge nominated for the Supreme Court.  I just happen to agree with Daniel Larison that the solution to this double standard is to quit applying it to whites rather than start applying it to non-whites.

Fifth, it’s hard to stop the kabuki once it starts.  Its modern incarnation began with Robert Bork, an obviously brilliant but undeniably controversial and arguably kooky appointment.  It quickly became standardized and applied to all but the most tepid appointments.  It took months to confirm John Roberts and Samuel Alito, despite their stellar qualifications and moderate temperaments.

Sixth and finally, while tedious and absurd when faced with an obviously qualified appointment who will no doubt be confirmed in the end, there has been a realization in recent years of just how important these appointments are.  Supreme Court justices stay on the bench years, even decades, after the presidents who appointed them leave office and decide the most portentious political issues.  I would prefer that the scrutiny be more sober and less theatrical but scrutiny itself is quite warranted.

UPDATE: Matt Yglesias chimes in:

analogies

And then there’s Ramesh Ponnuru who dubs her Obama’s Miers. Because, I guess, the qualifications Sotomayor holds only count as qualifications if you’re a white dude.

Now, I think Sotomayor looks qualified (I frankly don’t follow the lower courts enough to have a well-formed opinion) and earned plenty of ire from my side of the aisle for arguing Miers was not.  But I’m getting really tired of diplomas earned in ones 20s being cited as evidence that middle-aged people are/are not worthy of some senior position.  Surely, there are people who graduated SMU’s fine law school who are smart enough to serve on the Supreme Court.  Just as surely, there are people who Peter Principled once on an appellate court.  And, while I don’t think Miers by any means distinguished herself in the role, the list of White House Counsels includes some damned smart lawyers.  Why, many of them went to Harvard and Yale!

Related Posts:

About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Dave Schuler says:

    Have credentials suddenly become the sole consideration in approving Supreme Court appointments? For the last 20 years both judicial temperament and judicial philosophy have been seen to be fair game for consideration so I doubt we’ll see credentials alone being considered now.

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  2. PD Shaw says:

    My recollection is that Nixon really began pushing the idea of elite credentials (including ABA support) as a means of defusing liberal critics of picks that were more idealogically driven than a Democratic Congress could accept. Before then, there was a larger selection of cronies and political pay-outs in the mix of appointments.

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  3. Eric Florack says:

    “obviously qualified”?

    Forgive me James, but 60% of her opinions that came before the high court were overtruned. On what basis is one UNqualified?

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  4. Alex Knapp says:

    but 60% of her opinions that came before the high court were overtruned.

    Please provide (a) a source for this statistic and (b) a relevant comparison of this statistic to other Supreme Court Justices who served as Appellate Judges prior to serving.

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  5. Rick Almeida says:

    Eric,

    It’s 50%, 3/6, and it seems like Court observers consider having 50% of one’s rulings upheld is a good percentage. In terms of her whole appellate body of work, just .8% of her rulings have been overturned. The Supreme Court, since the 2004 term, has reversed about 75% of the cases it’s heard, so it seems like having 50% of one’s rulings overturned is better than the mean.

    While responding to you, would you care to discuss your referring to Judge Sotomayor as a “spic chic” [sic] on your sewer of a blog?

    About a month ago, one of the posters at the Volokh Conspiracy cited something of a quantitative analysis of the number and impact of Sotomayor’s appellate court rulings, and then compared that to recent Justices. They found her opinions to be, IIRC, less impactful than Chief Justice Roberts’ and more than Justice Alito’s.

    Linky

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  6. Tlaloc says:

    Third, while I don’t recall any such controversy with Sandra Day O’Connor (who, frankly, was not particularly well qualified) it was widely assumed and continues to be argued to this day that Clarence Thomas (who was objectively qualified for the Court) was a token hire.

    Thomas was qualified? By all accounts the guy is thick as a whale omelet. Scalia is a ^%$# but at least he’s got brain power. Thomas is just an embarrassment. He serve a whole one year as a judge before being nominated for the high court. Before that he was Reagan’s chair of the EEOC, a position where he was pretty miserably ineffective (since he doesn’t, you know, support the government assuring equal rights…).

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  7. steve says:

    SCOUUSblog has the answers. Alito and Roberts each took about 75 days to be approved once they were submitted (cannot recall why Alito’s went a month without being submitted).

    What racially inflammatory remarks are you referring to above? If you are referring to the comment taken out of context from her speech, I would suggest you read the whole speech. Single sentences taken out of context often sound racist. That is what the left does a lot to right wing pols. Disingenuous by both sides.

    Graduating from the top law schools, and finishing at the top of those law schools, is mostly a matter of signaling. It says that person was willing to work hard enough and was smart enough to be at the top. For all we know the best lawyer in the world graduated from SMU. That person will just have a harder time making that known. After all, there is a lot of subjectivity in the assessment.

    Steve

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  8. [...] James Joyner: Sotomayor has issued public statements that, while arguably true, are racially inflammatory and that would be much more controversial still if uttered by a white judge nominated for the Supreme Court.  I just happen to agree with Daniel Larison that the solution to this double standard is to quit applying it to whites rather than start applying it to non-whites… [...]

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  9. Eric Florack says:

    http://www.americanthinker.com/blog/2009/05/sotomayor_overturned_60_of_the.html

    http://washingtontimes.com/news/2009/may/27/60-reversal-of-sotomayor-rulings-gives-fodder-to-f/

    http://www.freerepublic.com/focus/news/2258881/posts

    http://lucianne.com/thread/?artnum=472514

    That last is interesting, it adds that her record will soon be 67% overtured.

    http://beltwayblips.dailyradar.com/story/where_policy_is_made_sotomayor_s_court_comment/

    While responding to you, would you care to discuss your referring to Judge Sotomayor as a “spic chic” [sic] on your sewer of a blog?

    Would you care to read it again, this time getting the attribution correct?

    As for the rest, had you bothered to read further, you’d have noticed that the charge of reverse racism was being laid. Odd, the response seems to make serious note of the suppsoed slur, but never seems to notice the overt racism involved in her comments. The leftloons walk into the teeth of their own double standards every damned time. The high road on racism is kinda hard to maintain when you’re up to your pipicks in your own racism, Rick.

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  10. Alex Knapp says:

    Okay, so all of those sources repeat “60%” without actually referencing how many cases sent up and how many overturned so I can check their math. Do you have that?

    Also, please provide a source that shows the percentages that other Supreme Court Justices were overturned when they were Appellate Justices so that we can make a more informed judgement.

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  11. sam says:

    Before everyone gets whatever, why don’t we all go over to SCOTUS blog and read, Judge Sotomayor’s Appellate Opinions in Civil Cases. The authors say:

    Judge Sonia Sotomayor is an obviously serious candidate to serve on the Supreme Court. We have been struck by how the amount of commentary about Judge Sotomayor has ignored the most accessible and valuable source of information: her opinions as an appellate judge. Last year, I directed a project in which a team of Akin Gump summer associates extensively reviewed Judge Sotomayor’s opinions. Amy Howe subsequently revised and expanded their work, with contributions by me.

    Here, we make our first effort at summarizing what we regard as Judge Sotomayor’s principal opinions in civil cases. Our only goal is to identify and summarize the opinions, not evaluate them.

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  12. sam says:

    Forgot to add: The authors will be publishing a similar summary of Sotomayor’s opinions in criminal cases.

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  13. Eric Florack says:

    Okay, so all of those sources repeat “60%” without actually referencing how many cases sent up and how many overturned so I can check their math. Do you have that?

    Well, The Lucianne link shows it, as does the WaTi link. I’ll quote the latter:

    Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.

    “Her high reversal rate alone should be enough for us to pause and take a good look at her record. Frankly, it is the Senates duty to do so,” said Wendy Wright, president of Concerned Women for America.

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  14. PD Shaw says:

    On the 60% reversal rate, what is striking to me is the denominator, not the numerator. She only had five opinions reviewed by the SCOTUS in 11 years. That suggests that the decisions were frequently, not perceived as important enough to review. No doubt lack of seniority is a large part of that.

    The denonominator (three reversals of 380 opinions) seems trivial.

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  15. sam says:

    Oh, and in case Bit can’t find his way over there, the authors say:

    CIVIL LITIGATION

    Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases. To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed. In those two cases (and likely the third), Sotomayor’s opinion was rejected by the Supreme Court’s more conservative majority and adopted by its more liberal dissenters (including Justice Souter). Those outcomes suggest that Sotomayor’s views would in many respects be similar to those of Justice Souter.

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  16. James Joyner says:

    On the 60% reversal rate, what is striking to me is the denominator, not the numerator. She only had five opinions reviewed by the SCOTUS in 11 years. That suggests that the decisions were frequently, not perceived as important enough to review.

    More to the point, the denominator should be the total number of opinions she wrote, not just those that were selected for review. How many did she write?

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  17. Rick Almeida says:

    Eric,

    Re-reading your linked blog post, a writer named DavidL is the author. Fair enough, you merely tolerate racial slurs (free speech! fighting the PC police!) on your blog and the site you (florack.us) maintain.

    That same brave author also doesn’t shy away from the n-bomb. Classy.

    Bit’s Washington Times piece claims that Sotomayor had 3/5 cases overturned, SCOTUSblog and Slate.com have the figure at 3/6. Either way, it’s better than the mean, but this minor factual discrepancy should be easy to remedy.

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  18. Eric Florack says:

    There again, Rick, it got used only in the context of a discussion of discrimination. And once again, you fall victim to the double stndards of the left… which is the point. Perhaps it’s time you asked yourself; Why are you angry about one, tounge in cheek discimination, but not the real kind?

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  19. PD Shaw says:

    More to the point, the denominator should be the total number of opinions she wrote, not just those that were selected for review.

    Yeah, that’s what I was trying to get at.

    How many did she write?

    380 majority opinions according to the Washington Times.

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  20. PD Shaw says:

    At Sam’s invitation, I’ve taken to look closely at one of the reversed opinions, Riverside, an environmental case.

    What stands out is that although the Bush administration lost that case before Sotomayor, it urged the SCOTUS not to review the erroneous decision because the case wasn’t that important. (It was important enough to the utility being regulated, who successfully persisted in obtaining a 6-3 reversal)

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  21. anjin-san says:

    Bits friend david also wrote a “barack obama house ni__er” post that bit published. When called on it bit predictably hid behind davids skirts.

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  22. Alex Knapp says:

    Eric,

    Do you have the reversal rates for other Supreme Court Justices from when they were Appellate Judges?

    Also, 3/380 opinions overturned is 0.8%.

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  23. Eric Florack says:

    Do you have the reversal rates for other Supreme Court Justices from when they were Appellate Judges?

    If you’re going to make the case that the rate of overturned rulings isn’t abnormal, then that seems to me your case to make, not mine.

    I’ll be interested to see what you come up with.

    That said, I note nobody else has used that argument previously. One logical possibility for it not having been used is that it’s a fairly heavy research row. The other is that it doesn’t reinforce the argument of her competance.

    Either way, I’ll be interested to see your research on the matter.

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  24. Alex Knapp says:

    Eric,

    You claimed that she’s unqualified because of her reversal rate. If that’s the case, you must have, as your premise, that her reversal rate is abnormal. Accordingly, the burden of proof is on you to provide evidence that her reversal rate is abnormally high. Otherwise, you have not proved the case that she is unqualified because of her reversal rate.

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  25. floyd says:

    tlaloc;
    I can only assume that “^%$# t ” would be interpreted as meaning…
    “The smartest man on the court with the best understanding of the U.S. Constitution”

    Plebeian Dictatorship

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  26. Eric Florack says:

    You claimed that she’s unqualified because of her reversal rate.

    Correct, that’s my argument. If you’re going to argue that the reversal rate is irrelvant due to other factors, fine. List them.

    I will however point out that the Democrat don’t seem to have a problem with using the argument I’ve made, against a Republican appointee. Take for example, the case of Judge Terrence Boyle who was appointed to serve as a federal appellate judge on the United States Court of Appeals for the Fourth Circuit, back in ’06.

    Despite having a record of overturning below the average for district court judges, around 7%…. The national rate at that level is a little under 9%) the left tried using the ‘high percentage of overturn’ argument against him.

    I note the same argument was tried against Justice Alito, too.

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  27. sam says:

    @Bit

    Do you have the reversal rates for other Supreme Court Justices from when they were Appellate Judges?

    If you’re going to make the case that the rate of overturned rulings isn’t abnormal, then that seems to me your case to make, not mine.

    In this story, Supreme Court justices have already acted on some Alito decisions, I count three reversals of Alito by SCOTUS. The article does not say how many opinions from the 3d (Alito’s) circuit have found their way to SCOTUS, but it does say:

    In 2003, the Supreme Court considered four cases from the 3rd Circuit, compared with 33 from the largest, the San Francisco-based 9th Circuit, and 10 from the Cincinnati-based 6th Circuit, according to the Harvard Law Review.

    “The 3rd Circuit is a tiny circuit,” said Tom Goldstein, a Washington lawyer who argues frequently before the high court.

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  28. Eric Florack says:

    Well, yeah. And the differences in structure between the 9th and the rest make for some apples- and- oranges comparisons. To that point, happily, I happen to have an old “Law and society review” article from 2006 open at the moment, due to some other research I’ve been doing for an article elsewhere.

    Several commentators and a few scholars have focused their attention on an interesting phenomenon in the American federal judiciary. The Ninth Circuit Court of Appeals, which covers much of the western United States, is reversed far more frequently than any other circuit. Its critics have pointed to its size (Posner 2000), but others have noted its substantial ideological distance from the Supreme Court, particularly over the last 25 years (Hellman 2000; Herald 1998; Wasby 1998). Another potential source of the Ninth Circuit’s reversal rate is that it, unlike any other circuit, uses a limited en banc procedure to review panel decisions, while all other circuits use full en banc proceedings to accomplish the same purpose.4 In testimony submitted to the Commission on Structural Alternatives for the Federal Courts of Appeals, Justice Antonin Scalia identifies the limited en banc proceeding as the source of many of the Ninth Circuit’s problems. He notes that a “disproportionate segment of the [Supreme] Court’s docket . . . is consistently devoted to reviewing Ninth Circuit judgments, and to reversing them by lop-sided margins, [which] suggests that the [limited en banc] error reduction function is not being performed effectively” (Scalia 1998).

    Personally, I’d be interested in how many opinions she sided with the minority, thereby making the wrong choice, but not being over-ruled. It amazes me nobody else has brought that one up.

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  29. Our Paul says:

    I for one usually avoid quoting Larison, for he has the distressing tendency of thinking before he places his pixels in the ether, and as such, his writing tends to the convoluted. Despite his perch on the American Conservative, his writings are thought provoking. He certainly does not walks lock step with the latest talking points put out by the RNC, or that he goose-steps in synchrony with the mavens of the Cato or American Enterprise Institutes.

    That said, I can find little or no support in the link you gave that Larison agrees with this:

    Fourth, Sotomayor has issued public statements that, while arguably true, are racially inflammatory and that would be much more controversial still if uttered by a white judge nominated for the Supreme Court.I just happen to agree with Daniel Larison that the solution to this double standard is to quit applying it to whites rather than start applying it to non-whites. (My italics. OP)

    He does mention a double standard, but to my mind, he views the current controversy as a rather weak straw man. Perhaps two snips from post will direct your irregulars to read brother Daniels whole post:

    Note also that the supposed “claim of ethnic and gender superiority,” as Taylor puts it, is exceedingly weak, if it is there at all. The first quote can just barely be read this way if you really want to read it that way, and the second does not refer to superiority, but only to difference. Since when have people on the right denied or complained about recognition of the importance of real physiological and cultural differences?

    and

    She is not asserting that Latinas are naturally superior judges, nor is she even saying that they are necessarily better on account of their experiences, but that she hopes that they would be. One might almost think that her recognition that impartiality is something to be pursued, but that it is never fully achievable, would be considered a refreshingly honest admission that judges have biases and are shaped by their past experiences.

    As to Sister Sonya’s reversal rate, I will throw my weight behind brother Alex, rather than my very distant cousin Eric (AKA Bithead). In the reversal data mix one has to throw in the question as to when. If the reversal includes some of the dreadful 5 to 4 decisions so common in Chief Judge Roberts tenure, then it certainly would be considered by most rational people a plus in her favor.

    And now, Andre, the sword…

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  30. sam says:

    Bit, what are you going on about the 9th for? Judge Sotomayor sits on the 2d. Don’t tell us, please, that you’ve been pumping out all this stuff because you think she is sitting on the 9th Circuit…really? Jesus.

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  31. sam says:

    Well, this ought to put paid to the “reversal rate” argument:

    What Should a Judge’s Reversal Rate Be?

    posted by Dave Hoffman

    Via TPM, I found that critics of Judge Sotomayor have made some hay of her reversal rate in the Supreme Court (50% of 6 cases heard). Though I like data more than the next guy, I will freely admit that this use of quantitative empirical legal studies is demonstrably silly. I’m going to try to demonstrate to you in this post that a reversal rate of fifty percent is exactly what the state-of-science would predict to be ordinary [or even below average], and a rate of zero (which some might think of as emblematic of a law-abiding judge) tells you that the judge in question might be departing quite severely from precedent.

    Read the rest of it.

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  32. Steve Verdon says:

    What racially inflammatory remarks are you referring to above? If you are referring to the comment taken out of context from her speech, I would suggest you read the whole speech. Single sentences taken out of context often sound racist. That is what the left does a lot to right wing pols. Disingenuous by both sides.

    I have read the entire context thanks to Grewgills.

    The comment can be looked at in two parts:

    1. That people with different backgrounds will arrive at different decisions/conclusions.

    2. That people with certain backgrounds will be arrive at better decisions/conclusions.

    Part 1 is trivially obvious given just a few seconds thought. Number 2 isn’t neccessarily that bad either if we consider that yeah, an engineer from a great school, with lots of practical experience and such will likely make good engineering decisions and conclusions.

    The problem is that Sotomayor invoked race and ethnicity in making her comment. That is to reduce it to its most crude form, she hopes that a brown woman would make better decisions than a whit man. Frankly, in certain situations I imagine the brown woman would make shitty decisions. Why? Because she is brown and a woman. In others the white man would make shitty decisions. Why? Because he is white and a man. Which is going to be better on the whole? As Alex Knapp says provide some frigging statistics on people’s ethnicity, race, gender and their deicisions and how they turned out.

    I find it a troubling assertion. Some white males may think the same way and I still find it a troubling thing. Why? Because it suggests that merely being brown and a woman (hopefully) gives such people a greater insight to the TruthTM than those of us who are not women and not brown.

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  33. James Joyner says:

    Paul: I wrote,

    Sotomayor has issued public statements that, while arguably true, are racially inflammatory and that would be much more controversial still if uttered by a white judge nominated for the Supreme Court.I just happen to agree with Daniel Larison that the solution to this double standard is to quit applying it to whites rather than start applying it to non-whites.

    The fact of the matter is that any statement issued by a public official to the effect that race and ethnicity matter at all puts them on dangerous grounds, forced to defend themselves against charges of racism. I side with Larison in thinking that a bad thing.

    He does mention a double standard, but to my mind, he views the current controversy as a rather weak straw man. Perhaps two snips from post will direct your irregulars to read brother Daniels whole post:

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  34. kth says:

    I don’t really expect conservatives to approve of Sotomayor, or for that matter anyone Obama might nominate. But I’d make one fairly narrow point: procedurally, there’s no way to distinguish between her nomination and Alito’s (given, as Yglesias pointed out, their nearly identical resumes). Specifically, if you didn’t think a filibuster was justified in the one case (that means you, Gang of 14), you can’t possibly justify the use of it now.

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  35. Eric Florack says:

    Bit, what are you going on about the 9th for? Judge Sotomayor sits on the 2d.

    Oh, I know that, of course. But I bring all that up, because the Ninth is the most overtruned district on an order of scale, and their style of dealing with things vs that of other circuits beings up the whole idea that the rate of overturn has as much to do with the circuit court the individual judge is on as it does the individual.

    That ties in with the last line of that comment rather neatly. You see, I wonder if her error rate wasn’t quite a bit higher, or lower… than the ultimate overturn rate would suggest. I thought the implication there somewhat more clear than it apparently was.

    @ Paul

    As to Sister Sonya’s reversal rate, I will throw my weight behind brother Alex, rather than my very distant cousin Eric (AKA Bithead). In the reversal data mix one has to throw in the question as to when. If the reversal includes some of the dreadful 5 to 4 decisions so common in Chief Judge Roberts tenure, then it certainly would be considered by most rational people a plus in her favor.

    So, am I to read in this that you place more weight on your agreement with the ruling than you do the other judges agreement? It’s an interesting argument, certainly.

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  36. James Joyner says:

    But I’d make one fairly narrow point: procedurally, there’s no way to distinguish between her nomination and Alito’s (given, as Yglesias pointed out, their nearly identical resumes).

    Now, so far as I know, both are fine picks given the context of who was doing the picking. But the fact that the both went to the same schools and served on appellate courts does not necessarily make them equally qualified. One could have sucked on the appeals court. One could be a temperamental jackass.

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  37. Eric Florack says:

    Because it suggests that merely being brown and a woman (hopefully) gives such people a greater insight to the TruthTM than those of us who are not women and not brown.

    (nod) Exactly so.

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  38. An Interested Party says:

    He certainly does not walks lock step with the latest talking points put out by the RNC, or that he goose-steps in synchrony with the mavens of the Cato or American Enterprise Institutes.

    Unlike some others around here…

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  39. Tlaloc says:

    tlaloc;
    I can only assume that “^%$# t ” would be interpreted as meaning…
    “The smartest man on the court with the best understanding of the U.S. Constitution”

    Not really what I had in mind, but if it floats your boat. Personally I find Scalia’s pretenses of originalism (when it suits him) to be transparently hypocritical and even cowardly.

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  40. Steve Verdon says:

    And for the record I think Alex Knapp is absolutely right that we shouldn’t look at just the reversal rate of decisions that went to the SCOTUS. After all, it appears very few went there. This would suggest that the vast majority of her decisions were good enough to not warrant further review. Hence looking at just one statistic is going to give a skewed measure.

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  41. Alex Knapp says:

    Eric,

    I note the same argument was tried against Justice Alito, too.

    Okay, you lost me. Are you saying that Alito was unqualified?

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  42. kth says:

    One could have sucked on the appeals court. One could be a temperamental jackass.

    I was assuming that the vetting/oppo research process that has, in the weeks since Souter announced his retirement and Sotomayor was widely shortlisted as his replacement, produced no evidence of either (again just as before with Alito) would continue to come up empty. If some sort of Anita Hill type of bombshell drops wrt Sotomayor, then all bets would be off.

    Absent such a development, those that thought it was wrong for Alito to be denied an up-or-down vote, that he shouldn’t have to meet a supermajority requirement, have (at least according to information now publicly available) no basis for denying Sotomayor the same treatment.

    Brief recap of the Gang of 14: it was 7 Dems and 7 Repubs, who agreed to vote for cloture in exchange for the Senate Repubs (led by Dick Cheney) taking the nuclear option (to declare a filibuster “out of order”, by simple majority, for judicial nominees) off the table.

    There is simply (again, judging by publicly-available information and barring a bombshell) no basis for those 7 Republicans of the Gang of 14 not to extend the same courtesy to Sotomayor. If those seven are unwilling to vote for cloture, then they are unprincipled, advancing a Republican agenda on a “moderate” front, in which case the “nuclear option” freely bruited by Cheney & company would be a perfectly reasonable response (I would finally note that the extreme unlikelihood of it ever coming to this is probably what Kevin Drum is referring to with his ‘kabuki’ remark).

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  43. James Joyner says:

    I was assuming that the vetting/oppo research process that has, in the weeks since Souter announced his retirement and Sotomayor was widely shortlisted as his replacement, produced no evidence of either (again just as before with Alito) would continue to come up empty.

    Largely right in this case, although vetting can be sloppy. There have been reports that Sotomayor does not play well with others, although nothing that I think would sway many votes that weren’t likely against her to begin with.

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  44. Steve Verdon says:

    There is simply (again, judging by publicly-available information and barring a bombshell) no basis for those 7 Republicans of the Gang of 14 not to extend the same courtesy to Sotomayor. If those seven are unwilling to vote for cloture, then they are unprincipled, advancing a Republican agenda on a “moderate” front, in which case the “nuclear option” freely bruited by Cheney & company would be a perfectly reasonable response (I would finally note that the extreme unlikelihood of it ever coming to this is probably what Kevin Drum is referring to with his ‘kabuki’ remark).

    Bwahahahahahaha….oh my…hahahahahah….heh…yeah…

    Well you see the problem with this is, mmmmkkk…bwahahahahahaha….

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  45. Eric Florack says:

    Okay, you lost me. Are you saying that Alito was unqualified?

    No. You got lost because you’re busy reading your own roadsigns.

    I’m merely saying that the argument was used by Democrats when a right-leaning judge was nominated, as with Judge Boyle as I cited.,. and that he wasn’t qualified was certainly the thrust of their argument. I’ll leave it to your own investigation as to the argument being valid in each of those cases, or not. Either way, the argument is not new, nor I think, can it be conisdered invalid based on some of the numbers being tossed around.

    As an aside, I am curious; what would your opinion of Justice Alito be, in terms of fitness for the USSC?

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  46. Alex Knapp says:

    Eric,

    Let me ask you a question: if it turns out that Alito had a 50% reversal rate or higher, would that make him unqualified, under your definition?

    As for Alito, I opposed his nomination because I found him to be altogether too deferential to the executive and the legislature at the expense of the Constitution. History has borne that out.

    Having read through many of Sotomayor’s opinions so far, I’d say my issues with her are similar. She’s too deferential to the legislature. (I haven’t read any significant executive power decisions of hers yet to judge).

    But, you know, if I were a judicial conservative, I would adore Sotomayor, because from what I’ve said so far, she bends over backwards to not strike down laws or overturn precedent.

    I just don’t think that’s a a good trait for a Supreme Court Justice, which is why I don’t care for Alito, Roberts, Breyer, or Ginsburg.

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  47. Rick Almeida says:

    As an aside, I am curious; what would your opinion of Justice Alito be, in terms of fitness for the USSC?

    I’m happy to jump in on this. I felt that then-Judge Alito was more than fit for the position of Associate Justice. He met all the (admittedly few) Constitutional requirements, and I feel firmly that presidents are generally entitled to significant deference in their appointments.

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  48. Tlaloc says:

    I disliked Alito for his ruling where he equated women and children to property. That kind of rubbed me the wrong way, personally.

    I was fine with Roberts.

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  49. PD Shaw says:

    sam’s link to Concurring Opinions indicates that the SCOTUS typically reverses 60-75% of the cases it hears.

    I’ll give the new conventional wisdom a push: she is merely average.

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  50. PD Shaw says:

    Earlier, I commented that I was surprised at the few number of her majority opinions reviewed by the SCOTUS. I take that back:

    According to stats available at the SCOTUS blog, the SCOTUS has typically reviewed about 5.25 decisions from the Second Circuit each year. (2004 = 2; 2005 = 7; 2006 = 5; 2007 = 7) Assuming an average of 5.25 decisions over Sotomayor’s 11 years at the Circuit Court, there would have been 58 decisions reviewed that were penned by one of 12 active judges on the Second Circuit. Thus, one would expect a judge to have about five decisions reviewed over the course of eleven years.

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  51. Grewgills says:

    Thanks to those who dug them out for the numbers.
    It seems clear now that she was not reviewed more or less often than her peers in the 2nd and that she has been reversed at the same or slightly lesser rate than is typical. Further, of those 3 reversals the judge she is replacing agreed with her argument twice.
    The 60% reversal line of attack is pretty weak tea.

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  52. Grewgills says:

    While responding to you, would you care to discuss your referring to Judge Sotomayor as a “spic chic” [sic] on your sewer of a blog?

    Would you care to read it again, this time getting the attribution correct?

    As for the rest, had you bothered to read further, you’d have noticed that the charge of reverse racism was being laid.

    BS. Following is the entire article (sans the blockquoted portions)

    Say what you will about George (Forty-Three) Bush. He had but two Supreme Court opening and he nailed both of them. Both of Bush’s nominees John Roberts and Samuel Alito had impeccable records and were conceded to judicial intellects.

    With the pending retirement of David Souter, the one now has his opportunity to leave his mark on the court. Given that Souter is the very epitome of mediocre, Obama has a great opportunity to upgrade the court and put a liberal intellect on the court to match the power of say Anton Scalia.

    Not surprisingly, Obama appears to be focusing demographics and not judicial factors. Obama isn’t looking for a liberal Scalia. He looking for a spic chic. Enter Sonia Sotomayor, from Jeffrey Rosen, New Republic:

    —Rosen quote—

    The case for Sotomayor is that she a compelling biography and mothering nature. However as circuit court judge she seems rather mediocre. The thought of Sotomayor doesn’t seem to be sending chills down the libtards’ spines.

    Ed Morrissey, Hot Air, puts Sotomayor is context with all of Obama’s appointments:

    —Morrissey quote—

    Whatever Obama looks for in an appointee, it isn’t talent and ability. Obama appears to limit his selections to only those few that fit his rather narrow socialist perspective. While, Obama may consider himself, another John F. Kennedy, among other, Obama’s administration will never earn a Kennedy like description as the Best and Brightest. With the one, is more of the dull and the ideologue.

    Not one thing about reverse racism in the whole post. We are again treated to Bit’s incapability of admitting fault in the face of overwhelming evidence.

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  53. Eric Florack says:

    So, let’s see here, Grew.
    A bunch of quotes about how she’s unqualified.
    On what basis might someone think she was qualified?

    Whatever Obama looks for in an appointee, it isn’t talent and ability.

    What is it you suppose remains?

    Because he was looking for someone of a particular race and gender.

    That’s racism, and sexism, Grew. Plain and simple.

    Now, need anything else explained to you?

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  54. Grewgills says:

    Explain exactly how the post is made stronger or more persuasive by using the term “spic chic”. Absent that and without any other overriding reason for its use, it seems stuck in merely for shock value and/or so this person has an excuse to fling epithets like a monkey flings dung.

    Would my argument be made stronger or more persuasive if I called DavidL a cracker. That would of course be in support of my charge of reverse reverse racism*.

    There was at least a very weak defense for this poster using the term “house nigger” when referring to Obama. Now with this post there appears to be (one of your favorites) a pattern forming.

    A bunch of quotes about how she’s unqualified.

    2 = a bunch? One quote expresses mixed opinions and the other one, from a far right ideologue, considers both her and the one she is replacing mediocre. Neither states she is unqualified.

    On what basis might someone think she was qualified?

    As has been pointed out she has the same qualifications on paper as Alito, though with less of her opinions reversed by the supreme court. Alito had at least 4 decisions reversed by the supreme court and more overturned by lower courts.

    Because he was looking for someone of a particular race and gender.

    That’s racism, and sexism, Grew. Plain and simple.

    By that logic, Reagan was a sexist for choosing O’Connor and GHWB was a racist for choosing Thomas. Was Reagan a sexist? Was GHWB a racist?

    * ie racism

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  55. Eric Florack says:

    Explain exactly how the post is made stronger or more persuasive by using the term “spic chic”.

    Simple; If that reference angers you and the overt racism of the candidate herself and that of Obama doesn’t, where are you? You’re certainly not on the racism high road that most leftists like to claim for themselves.

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  56. An Interested Party says:

    Simple; If that reference angers you and the overt racism of the candidate herself and that of Obama doesn’t, where are you?

    Ohhh, I see…so it’s ok to use a racist term to describe someone if the point is to smoke out other people’s support for that person(who is supposedly a “racist”)…wow, there’s some sterling logic there…how, exactly, are the president and his nominee “racists”? These lines of attack against Sotomayor are desperate, disingenuous, and pathetic…such a pity that none of them have the slightest chance of working…

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  57. Our Paul says:

    I would call it a draw James (May 27, 2009 | 01:15 pm). You can use bro Daniel’s essay to justify that folks in the public eye should not mention their ethnicity for fear that it may be “racially inflammatory”. I, in turn, will use bro Daniel’s quotes in my above post (May 27, 2009 | 12:40 pm) to argue that Judge Sonia Sotomayor comments are being quoted out of context, and only to raise and solidify the issue of her being a racist.

    But hey mon, you have some major luminaries on your side. Newt has joined Rush (AKA the Conscience of the GOP) in blasting Sister Sonia as a racist. And of course, the barking dogs are at it 24/7.

    The question begs exploration: Is this the way to attract the educated class, or those under 30, or the female voters to your banner? Those, by every available pole have gone to the Independent or Democratic camp. Who then, for God’s sake, are you trying to attract to you cause?

    It really boils down to this question: Are you an advocate, or an apologist for the strains that permeate the Libertarian / Conservative / Republican Party? Newt, Rush, and others are clearly advocates. Daniel Larison, and very few others, are apologists.

    I think it was Julius Caesar the once said to Mark Anthony: If you do not have enough troops that believe in what you say, you can kiss you’re a*s good by…

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  58. anjin-san says:

    Bit. Look dude you are a fascist/racist.
    Quit whining. Man up and fees up…

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  59. anjin-san says:

    We can jawbone this all night, but the point is pretty much moot. No one outside of the “world is flat” crowd doubts that she is qualified. From Obamas perspective it is simple. We can have a timely confirmation or we can have a fight. Obama has kicked the GOPs ass before and he is prepared to do it again.

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  60. Grewgills says:

    Simple; If that reference angers you and the overt racism of the candidate herself and that of Obama doesn’t, where are you? You’re certainly not on the racism high road that most leftists like to claim for themselves.

    Wow, that is quite the rationalization. Now you can call Obama and any of his appointees any bigoted name you choose because you have built such an ironclad defense for yourself. You and DavidL aren’t really racist, your just trying to smoke out the real racists.

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  61. Eric Florack says:

    Wow, that is quite the rationalization

    Not at all. Look closely at your own spittle filled comments as well as those from WhiskeyFire, and you’ll notice it worked rather well. The comment drew liberloons like wolfs to a sheep…. so busy were they expressing their high moral outrage they not a one of them noticed the people they were defending were ACTUAL racists. Group politics is racism/sexism, Grew. If you can’t bring yourself to understand that salient point, I don’t expect you to have the wit to understand the rest of it either. But I consdier the point well made to those with the brains to see it.

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  62. Grewgills says:

    Bit,
    Again I ask, was Reagan a sexist?
    Was GHWB a racist?

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  63. Eric Florack says:

    As DavidL said this very morning:

    A racist is any person who makes an assumption based on race. Period. Full stop.

    The ilk of David Duke are racist because they assume that whites are inherently superior to non-whites. Like wise, Sotomayor is a racist because she assumes a superiority as a Latino that is not possible for whites. If there were such a thing as the Knights of Kolor Klan, Sotomayor would be proud member in good standing and neither version of the KKK would be any less racist than the other.

    So, the question becomes, how is it you watse so much good spit on David’s original comment, while ignoring the overt racist attitude Sotomayor exhibts? Do you not see the double standard you’re employing?

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  64. Grewgills says:

    Bit,
    Why do you keep dodging the question?
    Were Reagan and Bush 41 sexist and racist respectively?
    Use the same standard that you use for Democrats.

    A racist is any person who makes an assumption based on race.

    That definition needs some work.
    Webster defines racism as,

    a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race

    See how that is much less hazy and doesn’t include such innocuous things as, I assume, even before seeing them, that an african american will be darker skinned than I am. Does that assumption make me racist? According to DavidL’s definition, yes. In fact DavidL’s definition makes everyone a racist.

    I honestly don’t know if you or DavidL are racists. I do know that if I hold you to the same standards that you hold your political opponents to (a tactic I am borrowing from you) then you are both racists. Do you not see the double standard you’re employing?

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  65. An Interested Party says:

    Sotomayor is a racist because she assumes a superiority as a Latino that is not possible for whites.

    That is a lie…the only “proof” you have to back up that statement is a partial quote of hers that was taken completely out of context…try again…

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