With regarding to SCOTUS nominees serving on a Circuit Court of Appeals and evaluating their opinions that have been overturned on appeal by SCOTUS, it should be kept in mind that SCOTUS takes well less than 100 cases a year, at least for the past several years. The Circuit Court judges rely upon SCOTUS decisions, many of which over the years may have not been very definitive or instructive, or perhaps even wrong. Rachel Madow had a segment on her MSNBC show yesterday that I don't how to link to. It makes very good points regarding such scoring.
 

I don't think it's the background-influences-decisionmaking bit that's troubling so much as the racial-pride bit.
 

Brian:

I do not see the comparison between Judge Sotomayor's argument for legal realism based upon race and sex identity politics and your comparisons.

First, Judge Sotomayor gave a speech to Suffolk law students (“Returning Majesty to the Law and Politics: A Modern Approach” (30 Suffolk U.L. Rev. 35 (1996)), setting out her legal realism without the racial and sexual identity baggage. I quote from this speech to contrast your comparisons below.

Next, Judge Sotomayor gave a 2001 lecture at the Berkeley entitled "A Latina Judge's Voice" sponsored by the hispanic political action group, La Raza, where she more fully sets forth her race and gender based legal realism.

In the lecture, Sotomayor rejected the contention of Justice Sandra Day O'Connor that a "wise man" and a "wise woman" should necessarily reach the same verdict. Instead, Sotomayor argued: "There is a real and continuing need for Latino and Latina organizations and community groups" to promote women and men of all colors in their pursuit of equality in the justice system."

She further observed: ""Our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that—it's an aspiration because it denies the fact that we are by our experiences making different choices than others."

Sotomayor concluded: “I 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."

Finally, there is Judge Sotomayor's (in)famous 2006 comments to Duke law students that circuit courts of appeal are where policy is made, but I we all know that judges do not make law - nod, nod, wink wink to knowing audience laughter.

Now, let's compare the Sotomayor arguments with your comparisons:

Judge Thomas M. Cooley, a famous conservative in his day, wrote in 1886... that “just and well-instructed [judicial] minds” can legitimately disagree in their legal interpretations...”

Judge Cooley is simply making the unremarkable observation that different judges can in good faith arrive at different interpretations of the law. In contrast. Judge Sotomayor is arguing that the law has no defined meaning at all and wise Latina women like herself must supply that meaning for an "evolving society."

In her 1996 speech to Suffolk law students, Sotomayor expressly distinguishes between the Cooley situation where "“many laws as written give rise to more than one interpretation” and her argument that “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”

Sotomayor further observed that: "The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances."

Judge Irving Lehman of the highest court of New York acknowledged in 1924 that in some cases there is no clear legal answer and judges must occasionally make policy decisions.

Lehman is speaking of the necessity for judges to fill in the blanks in incomplete or vague laws.

Once again, in her 1996 lecture, Judge Sotomayor expressly distinguishes between the Lehman situation where “laws are written generally” and her argument that “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”

Judge Alex Kozinski...declared...“there is frequently some room for the exercise of personal judgment”; “precedent…frequently leaves room for judgment”

See the Lehman comments.

In sum, Sotomayor is arguing for judges to make up their own law as they go along based upon racial and sexual identity politics, not merely engage in an honest disagreement over legal interpretation or fill in the blanks in the occasionally vague or incomplete law.
 

Surely there must be specific case examples of
"judicial activism' or "legislating from the bench"
(from both ends of the spectrum) that would give
a layman a better understanding of the terms.
 

Crossposted from Volokh Conspiracy, which is conducting a parallel discussion on whether Judge Sotomayor's candor is racists and sexist:

Professor Somin:

How exactly does one interpret Judge Sotomayor's 2001 lecture "A Latina Judge's Voice" as anything but racist and sexist?

Let's apply Stuart Taylor's hypothetical of placing Chief Justice Roberts in Judge Sotomayor's shoes and have him deliver more of the Latina speech from the point of view of a white man:

Chief Justice Roberts contrasted his views with those of Second Circuit Judge Miriam Cedarbaum. Judge Cedarbaum "sees danger in presuming that judging should be gender- or anything else-based. Judge Cedarbaum believes that judges must transcend their personal sympathies and prejudices."

Chief Justice Roberts questioned whether that was possible, adding, "I wonder whether ignoring our differences as [white] women or men we do a disservice both to the law and society."

"Our experiences as [white men] affect our decisions. The aspiration to impartiality is just that—it's an aspiration because it denies the fact that we are by our experiences making different choices than others."

In rejecting Justice O'Connor's argument that a "wise man" and a "wise woman" should reach the same legal conclusions, Robert concluded: “I would hope that a wise [white male] with the richness of [his] experiences would more often than not reach a better conclusion than a [Latina woman] who hasn’t lived that life."

Once you transpose white male for Latina female, these passages sound like a screed from David Duke.

If Roberts expressed these views prior to his nomination to the Supreme Court, this conservative/libertarian Republican would have thought him a racist and sexist and opposed his confirmation.

Sotomayer's speech is in no way comparable to Teddy Kennedy slandering Bork as a racist and sexist based on a fictional view of "Bork's America." Instead, this is a nominee to the Supreme Court making a lengthy prepared affirmative argument in favor of racism and sexism. Her argument is that Latina women by virtue of their race and sex enjoy a life experience that is superior to white men and thus will, more often, employ legal reasoning that is superior to white men.

Apart from a double standard giving racial minorities and women a pass for their racism and sexism, how can anyone honesty think Sotomayer would be any less a racist or sexist than the hypothetical Roberts for expressing these reprehensible views?
 

Since we are cross-posting from Volokh:

the first thing a mature person learns about race is that you can't directly compare what whites can do and what minorities can do. The NAACP is not racist. A national organization for the advancement of white people would be. It's not racist for blacks to call each other the n-word informally. It is racist for whites to call blacks the n-word.

Similarly, it isn't racist when a Latina federal judge says the judiciarly would benefit from more Latinas on the bench. That's not an argument that whites are inferior or subhuman; it's an argument for diversity and inclusion and an argument that due to the oppression they face, Latinas bring something additional to the table.

Now note, I don't necessarily buy all the arguments for racial and ethnic diversity. They may not actually be well-founded. But they aren't racist, and saying that a white judge couldn't get away with saying the bench needs more whites ignores that it really is different when members of historically oppressed groups argue for inclusion than when a white argues for white supremacy.

And one last point-- conservatives who have no history of condemning actual racism against minorities simply have no standing to accuse liberals of racism. Simple test-- if you think most of the racism in the world is against whites, you need to stop using the term.
 

Our resident LLB*'s crossposting at VC is mere regurgitation. Perhaps he feels he is pulling himself up by his own bootstraps. But our resident LLB*'s efforts at playing "switch-um" with Roberts demonstrates once again his problems with gender. Yes, our resident LLB* is indeed "cross" with his posting. And he claims to be serving as one of Chuck Krauthammer's "principled conservatives with his diatribe. Yes, that inner Latina in our resident LLB* is struggling to get out and he can't stand the challenge. And our resident LLB*'s double standard accusation is meaningless, coming from someone with no standards.

*Little Lisa's bro
 

A link to Rachel Maddow; she provides transcripts too for those who cannot watch video.

As to trying to imagine a white person making a similar statement, it takes little imagination. For instance (in part):

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.Judge Alito, answering a question from Sen. TOM COBURN (R-OK). Glenn Greenwald has more, but others have pointed it out too, including Keith Olberman.

Alito seems to have thought that was a good thing; that it added something that those without such a background could provide.

Her "Latina Voice" speech is also rich in its complexity. Why not single out a quote like this:

I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.As to policy making, h/t Keith Olbermann, Justice Scalia spoke of "the policy making capacity of judges" and the power of appellate judges to "make law" in this opinion.

"Look at that strange animal ... what is it?" It is a bird. Really?

BTW, Judge Kozinski gave an interview to Reason magazine once; he noted Kelo v. New London was a perfectly ordinary case. He also noted how he interpreted the Constitution:

Well, you have to start with the words. ... Words are cultural references. They’re proxies for ideas that people share, and the ideas that we share are different in material respects from those of the Founding Fathers. We view the world in different ways even when we use the same words as they did.But, he supports the constitutionality of race based affirmative action too. Can't trust that guy.
 

sorry, I didn't put in those tags ... they should fix that
 

Since Sotomayor was talking about discrimination issues in her speech, and how people of color and women have had experience with it, and white males typically don't, wouldn't the more appropriate analogy to the Sotomeyor "wise latina" comment be:

"I would hope a [lawyer who went to law school] with the richness of her experiences would more often than not reach a better conclusion than a [person who didn't go to law school] who hasn’t lived that life."

or

"I would hope a [licensed electrician who has apprenticed] with the richness of her experiences would more often than not reach a better conclusion than [me screwing around in my unfinished basement] who hasn’t lived that life."

or

"I would hope a [doctor from Harvard] with the richness of her experiences would more often than not reach a better conclusion than a [Theodoric of York] who hasn’t lived that life."
 

This comment has been removed by the author.
 

Dilan:

Good heavens man!

1) Are you actually arguing that Sotomayor's plainly racist and sexist arguments are justified because "you can't directly compare what whites can do and what minorities can do?"

In short, John Roberts as a white man would be a racist and a sexist for making Sotomayor's arguments on behalf of white men, but Sotomayo as a Latina woman cannot be a racist and a sexist for making her arguments on behalf of Latina women?

Pray tell, what is your justification for this double standard?

Why do you presume that white men can be held responsible for their ideas, but Latina women cannot?

2) Sotomayor is not arguing for inclusion. Indeed, she rejected the O'Connor argument for inclusion, contending that women and men can equally read the law. Instead, Sotomayor quite explicitly argued that Latina women are superior jurists compared with white men because of their superior life experiences.

3) Your smear of conservatives as bigots is beneath contempt. You are the one openly arguing for that a double standard should apply to women and racial minorities. As soon as you justify your double standard, come to me and talk about my race and gender blindness.
 

Pray tell, what is your justification for this double standard? The same justification for why a National Association for the Advancement of Colored People is not racist but a National Association for the Advancement of White People would be. Why is this so hard to understand?

Your smear of conservatives as bigots is beneath contempt.I didn't smear anyone, Bart. Your movement spends ZERO time worrying about racial discrimination against non-conservative blacks and hispanics. ZERO. That's the truth. Your movement has NO right to use the term "racism" It's sickening that you do.
 

Joe:

1) Alito sucking up to Dem Senators during a nominaton with an "I am sensitive because my family has suffered discrimination" riff is not the same thing as a Sotomayor-esque argument that we Italian men are superior jurists to Latina women because of our superior life experiences.

2) In the White case, Scalia properly noted that state judges have the power to make common law. Is there some Scalia argument about federal judges having the power to make law that you would like to cite? You might want to be cautious about relying upon an ex second rate sports caster turned political talking head for legal citations.
 

Dilan said...

BD: Pray tell, what is your justification for this double standard?

The same justification for why a National Association for the Advancement of Colored People is not racist but a National Association for the Advancement of White People would be. Why is this so hard to understand?

What is preventing the NAACP from being racist and and mandating that a NAAWP must be racist?

When either one of these organizations acts to prevent racial discrimination, they are not acting as racists.

However, when either one of these organizations argues that the government or society should prefer one race and discriminate against another race simply based on race, they are acting as racists.

Similarly, a double standard that argues that a person of one race can be held liable for his statements, but a person of another race cannot, simply because of their race, is itself racist.

Your movement spends ZERO time worrying about racial discrimination against non-conservative blacks and hispanics. ZERO. That's the truth. Your movement has NO right to use the term "racism" It's sickening that you do.

My movement? Good heavens, you do have a problem with group identity politics.

One does not need to be an EEOC attorney to have earned the right to call someone out on their racist or sexist beliefs.

Let's get back to Sotomayor's arguments and your double standard in their defense. How do you justify either as not racist or sexist?
 

It's not so much that you can't compare directly what whites and blacks do. It's that you're not allowed to. Not unless you've got a really thick skin, and don't mind being called a racist.
 

Bart screaming "racism" is appalling, considering his past track record here and on his blog.

See here and here and hereIf there's someone around who is ... ummm, "race-conscious" ... and who thinks that we need to worry about the coloured folks outbreeding us, that would be the Bartster....

Cheers,
 

This comment has been removed by the author.
 

In contrast. Judge Sotomayor is arguing that the law has no defined meaning at all and wise Latina women like herself must supply that meaning for an "evolving society."

Well, that may be true ... IF you just make sh*te up and pretend that she said something she didn't but which you fervently wish she did.

OTOH, I think it reprehensible that Bart has stated that it is good for Ctheney's skin complexion to allow him to eat dead puppies and dolphin embryos.

Cheers,
 

Bart, the only alleged "racism" you have ever condemned is that either expressed by liberals or expressed against conservatives. That's why you have no right to use the term. The term refers to something, and your movement-- which is complicit in what it actually refers to-- decided to make it refer to something else instead.
 

As the effort to twist Sotomayor's few words spirals ever further into sophism, I'd suggest that candor isn't what Sotomayor is being punished for. She's rather being punished for speaking on the record. Whether her remarks reflected candor or telling the audience what they wanted (or what she thought they needed) to hear, it clearly makes no difference to the nitpickers looking for something -- anything -- to throw at her.

So if a judge aspires to be nominated, someday, to the SCOTUS, the wisest course is simply never to speak on the record.

Whether this is good public policy I leave you to decide.

I suggest that this is all a tempest in a teapot. There is no evidence that those who will sit in judgment of the nomination are listening. If the polls do not show a groundswell of opposition, and, given the pathetic quality of the attacks on her thus far, I don't see any chance of that, she's going to be confirmed.
 

Dilan:

Sotomayor's arguments apply equally to liberal white male Justices like Souter, Breyer and Stevens as its does to conservatives like Roberts, Alito and Scalia.

Stop offering red herrings to divert from the issue at hand:

How do you justify Sotomayor's racist and sexist arguments and the double standard you apply to them?
 

Bart, the context of a Latina arguing for Latina inclusion is simply different from the context of a white male arguing for white male inclusion.

You want to make it the same, but it isn't. You want to make arguments for inclusiveness and diversity = racism, but they don't.

By the way, for the record, I think there is much to criticize in Sotomayor's viewpoint. It just isn't racist.
 

C2H50H said...

I suggest that this is all a tempest in a teapot. There is no evidence that those who will sit in judgment of the nomination are listening.

The fact that Sotomayor was pitching racist and sexist arguments is pretty damn plain. Dem attempts to spin it away have failed. The politically savvy Dems have started to shift into damage control, urging that Sotomayor retreat from her "Wise Latina" arguments.
 

If our resident LLB* is a "principled conservative," perhaps a compilation of all of his comments on this Blog would serve to demonstrate that such is oxymoronic. Now what if our resident LLB* were ever nominated as a judge, whether for a local police court or state court, or (as a reward when Gingrich/Cheney control of the White House) a federal court? Consider the trove of his quotes that he might have to respond to as compared to Sotomayor's few. Alas, wearing a robe just might bring out our resident LLB*'s inner Latina. You go, girl!

*Little Lisa's bro
 

Racism -
(1) 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

(2) racial prejudice or discrimination

Prejudice - (1): preconceived judgment or opinion (2): an adverse opinion or leaning formed without just grounds or before sufficient knowledge b: an instance of such judgment or opinion c: an irrational attitude of hostility directed against an individual, a group, a race, or their supposed characteristics

Discrimination - the act, practice, or an instance of discriminating categorically rather than individually b: prejudiced or prejudicial outlook, action, or treatment [racial discrimination]
Sotomayor's argument that it was the experience that women and people of color have that place them in a superior position to decide discrimination matters. Nothing in Sotomayor's speech comes close to saying she thinks a wise latina is per se superior in deciding trademark infringement lawsuits than white males. She argues those who have dealt with discrimination are better prepared to adjudicate matters involving discrimination, sort of like how a bankruptcy lawyer is probably better than an insurance defense lawyer in evaluating bankruptcy questions.

Agree or disagree with her point, it is clearly not racist. The alleged superiority comes not from the race or gender, but from the experience.
 

This comment has been removed by the author.
 

Bart,

I notice now that you're no longer claiming that it appears to be racism, now it's "pretty damn clear."

While you may have convinced yourself of that, you must understand that just because you've managed to convince yourself of something, that's no evidence of anything but your own willingness to believe yourself.

I, for one, don't see it. I doubt very many people will be as excruciatingly sensitive to racism on the part of someone who is, very very clearly, not a racist, as you are, and hence, I don't see it as affecting the Senate.

The politico? That's some authority you've got there.
 

Per BP,

1] I can say the Judge Sotomayor was 'sucking up' to Berkeley too. I instead judged their words, particularly Sotomayor's whole speech, not just a "gotcha" phrase.

Her basic point, even if she stepped too far at one point or the other (for sake of argument), holds. As some others have discussed.

This includes her recognizing that her background influences her judging & her efforts to temper such things when required. Other judges do the same thing -- that is, the influence etc. The problem here is she was honest about reality, which is at times dangerous.

2] Scalia did not just discuss common law. He also said that "they have the immense power to shape the States’ constitutions as well." And made a broader point:

This complete separation of the judiciary from the enterprise of “representative government” might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system.And, then references federal appeal cases to back up the principle that

the judges of inferior courts often “make law,” since the precedent of the highest court does not cover every situation, and not every case is reviewed.If you don't like Keith [maybe you prefer Keith Hernandez?], of course, loads of people cited this too. Of course, he probably got it from research staff anyway.

I find all of this rather obvious but the attacks just make reality harder to uphold. In the end, it is worth it for the Republicans doing this sort of thing. When reality is open to question repeatedly, the likely result is that a "compromise" will occur where reality is a partial loser.
 

The fact that Sotomayor was pitching racist and sexist arguments is pretty damn plain. Dem attempts to spin it away have failed....

... if your world is limited to what you see on FauxSnooze and hwat you hear on Limpbutt and Levin.

But as I said, what's truly despicable is people like Bart here who espouse racism on their own blog ... and then start screaming "racist!!!" with this out-of-context snippet (and then lie about what she actually said, to boot).

Cheers,
 

I've tried to inject a little cog. sci. into the discussion of empathy + Sotomayor.

If you're curious, I wrote a post criticizing Ilya Somin over at volokh, on cognitive science grounds, for denigrating the role of empathy in judicial interpretations, here: http://theforvm.org/diary/catchy/sotomayorempathy-issue-cog-sci-perspective
 

nerpzillicus said...

or disagree with her point, it is clearly not racist. The alleged superiority comes not from the race or gender, but from the experience.

Sotomayor makes a two part argument: (1) Latina women enjoy a richer life experience because of their race and gender, and (2) That richer life experience makes them better jurists than white men.

It takes two steps to get there, but Sotomayor's bottom line is indeed that the alleged superiority of Latina women in jurisprudence comes from their race and gender.
 

Bart says:

"It takes two steps to get there, but Sotomayor's bottom line is indeed that the alleged superiority of Latina women in jurisprudence comes from their race and gender."

Only if you ignore 95% of her speech does she have the "bottom line" that you quote, but then again disingenuous argumentation is par for the course for you...
 

Our resident LLB* needs some binder to take care of his verbal diarrhea:

"It takes two steps to get there, ..." Then he steps in it, again and again.

As for our resident LLB*'s "bottom line," it's as low as one can get. And he is a self-described "prinicpled conservative" who from 1/20/01 - 1/20/09 was a "compassionate conservative," perhaps with a little preemptive empathy. Just what step is our resident LLB* in recovery from his gender issues?

*Little Lisa's bro
 

Dan Froomkin's White House Watch (WaPo) today features "Unsympathetic Argument Against Empathy" with a good update of recent commentary.
 

Sotomayor makes a two part argument: (1) Latina women enjoy a richer life experience because of their race and gender, and (2) That richer life experience makes them better jurists than white men.

It takes two steps to get there, but Sotomayor's bottom line is indeed that the alleged superiority of Latina women in jurisprudence comes from their race and gender.Um, Bart, you're ignoring the other half of Nerpzillicus' point -- that Sotomayor is not claiming a general superiority for Latina judges, only a superiority in understanding discrimination over white males who have not experienced it. Which is simply to say, what we understand best depends on our life experiences.
 

Good point:

Now let's forget labels like "racist" for a moment. In our society, "racist" is a radioactive term, whether or not it's applied accurately. I want instead to home in on the premium our law places on impartiality — how noxious it regards the very notion that any important decision might be "influenced by any person's race, color, religion, national ancestry, or sex."...

Would Judge Sotomayor be qualified to serve as a juror? Let's say she forthrightly explained to the court during the voir dire (the jury-selection phase of a case) that she believed a wise Latina makes better judgments than a white male; that she doubts it is actually possible to "transcend [one's] personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law"; and that there are "basic differences" in the way people "of color" exercise "logic and reasoning." If, upon hearing that, would it not be reasonable for a lawyer for one (or both) of the parties to ask the court to excuse her for cause? Would it not be incumbent on the court to grant that request?
 

Getting back to the subject of conservative judges acknowledging that there is uncertainty in the law, I often suspect that the modern day conservative dislike for "judicial activism" goes beyond a mere dislike for the outcomes and amounts to a dislike for uncertainty. Whether it is Justice Roberts saying that he simply applies the law and arrives at the automatically correct result or current demands that Sotomayor be unaffected by her life experiences, or some of Bart's comments on other threads, what I am seeing is a horror at the thought that there could ever be nebulous or gray areas.

Sometimes I think that what the Roberts or DePalmas of the world would like is to replace the Supreme Court with a judicial supercomputer containing all the law in the US. Then you could simply punch in the facts and it would spit out the automatically and indisputably correct answer.
 

Watching the "conservatives" (in the US, not the UK, sense of the word) pontificating about the suitability of Judge Sotomayer to serve on the Supreme Court, one discerns two separate themes: the "judicial activism" theme and the "race-empathy" theme.

The problem with the conservative approach on "activism" is that "originalism", a novel method of constitutional interpretation which, in terms of the 1,000 years or so of Anglo-Norman jurisprudence around the world, has yet to gain any respectability or general acceptance outside the USA, could be said to be more representative of "judicial activism", than just about anything else. So "judicial activism" is only such when it is used to reach results these "conservatives" do not like.

As for the "race-empathy" theme, this seems to me to epitomise a rather nasty trait, that the USA inherited from the UK as much as anywhere else: the concept of the superior fitness of the white anglo-saxon [protestant] [male] to occupy positions of power over "lesser breeds without the law". One sees this trait in the call of some "conservatives" for the USA to "shoulder the white man's burden" in foreign affairs and also in something we unfortunately still see in England: the concept that only PLU - ("People Like Us") ought to be appointed to high office.

Although there has been progress in the UK of late (see for example the English Equal Treatment Bench Book) I am certainly old enough to remember hearing a senior judge telling a colleague in his club: "My dear chap, we can't possibly appoint "x". He comes from a family which actually had to buy its own furniture, he's a Catholic and not even a recusant. I believe he went to the LSE of all places."What the "conservatives" want is another "conservative" appointee who will only be "activist" in ways which suit their politico-judicial agenda. God forbid that the Court should actually benefit from another point of view.

Well, it's to be expected, folks. The plan to keep the Executive in "conservative" hands has failed at the ballot box. The plan to keep the Congress in "conservative" hands has failed at the ballot box and even the undemocratic filibuster may yet be lost quite soon if the Minnesota Supreme Court does its duty. Keeping a "conservative" majority on the Supreme Court is the last best hope of restraining progress. Just as the late Justice Powell envisaged in the Powell Memorandum.

One wonders just how dear Bart and his fellow travellers are addressing the Almighty these days - I dare say requests for the continued good health of the majority on the Roberts Court figure pretty largely in their supplications.

John Betjeman's In Westminster Abbey satirised the English PLU mentality. I wonder just how the Bart equivalent might read.
 

Charles M. Blow's OpEd in today's NYTimes aptly titled "Rogues, Robes and Racist" includes:

"Then there’s John Roberts, who replaced Rehnquist as the chief justice in 2005. That year, Newsday reported that Roberts had made racist and sexist jokes in memos that he wrote while working in the Reagan White House. And, The New York Review of Books published a scolding article in 2005 making the case that during the same period that he was making those jokes, Roberts marshaled a crusader’s zeal in his efforts to roll back the civil rights gains of the 1960s and ’70s — everything from voting rights to women’s rights. The article began, 'The most intriguing question about John Roberts is what led him as a young person whose success in life was virtually assured by family wealth and academic achievement to enlist in a political campaign designed to deny opportunities for success to those who lack his advantages.'”

The article closes with this:

"Until someone can produce proof of words and actions on the part of Sotomayor that even approach the scale of Rehnquist’s and Roberts’s, all I see is men throwing skeleton bones from class closets."

Here in MA in my early years of practice in Boston in the mid 1950s, I was exposed to Judge Monahan of Suffolk Probate Court who used to chastize lawyers coming before him unprepared. He reminded lawyers that they had to be prepared; that this also applied to judges. Then he would remind the lawyers that all a judge is is a lawyer who knew a Governor. This also applies at the federal level. Whether local, state or federal, there is a tendency to exalt judges, at least those who agree with us. But judges are mere mortals, as are the rest of us. Obama won; the Senate and House are controlled by Democrats. Conservatives have a toehold at SCOTUS and will do and say whatever it takes to hold on, including our resident LLB*, who claims to be a "principled conservative," with his Backpack of Lies, even bringing up his anglo-saxon side (whatever percentage that might be) at the same time that his inner Latina has him in turmoil. Those principles of our resident LLB* have long petered out.

*Little Lisa's bro
 

Yesterday's TPM features a video of Alito as a nominee appearing before the Senate Judiciary Committee a few years ago in a piece titled "Flashback: Alito Knows A Thing Or Two About Empathy Also."

Correction: The reference to Judge Monahan in my prior comment may have been a misspelling. I think the correct spelling is "Monoghan." There was a Middlesex Probate Judge Moynihan at the same time and I used to be confused at times with their names. Sometimes it's hard to tell one Celt from another. Or a Latina from a Gumba.
 

"what I am seeing is a horror at the thought that there could ever be nebulous or gray areas."I think it's more horror at seeing judges read bright line text, and finding it nebulous or gray. If finding the text nebulous licenses you to make decisions according to your own personal preferences, rather than look closer at the text, you're going to find an awful lot of things nebulous that somebody who found nebulosity less empowering would find clear.
 

Today's newsday.com features Tom Brune's "Alito and Sotomayor have striking similarities." No, that doesn't mean that they call balls and strikes (a la Justice Roberts) the same way. But sometimes it's hard to tell a Latina from a Gumba.
 

Also check out Hilzoy's post today at Political Animal (Washington Monthly):

http://www.washingtonmonthly.com/

featuring SCOTUSBlog's Tom Goldstein's analysis of Sotomayor's Circuit Court opinions in cases involving race. Here's Goldstein:

"In sum, 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."
 

"I think it's more horror at seeing judges read bright line text, and finding it nebulous or gray."

But whether the line is bright or nebulous or gray may be in the eye of the beholder. Sometimes looking too closely at the text does not provide the answer; nor may the delving into history provide a ready answer.

I just noticed at Larry Solum's Legal Theory Blog his post on Mark S. Stein's "The Domestic Violence Clause In 'New Originalist' Theory" which Solum highly recommends and goes to great lengths to explain his New Originalist views that Stein critiques. Many may think that the Domestic Violence Clause in Article IV, Section 4 of the Constitution may be "bright line" in the sense that it does not refer to spousal abuse. Stein's abstract closes with:

"In fact, the constitutional term 'domestic violence' could evolve so that an application of the Domestic Violence Clause to spousal abuse no longer seems absurd. Reflection on this possibility yields some insights about originalism and original expected applications."

This article is available via SSRN:

http://ssrn.com/abstract=1411282

Stein's critique includes Jack Balkin's views as well as Larry Solum's. I wonder if Jack will respond.

Some lines may be so bright as to require sunglasses. Maybe Stein was wearing his shades with Domestic Violence. The article is a short 11 pages that I'll get to later this morning, without my shades on.
 

Obama and Gibbs are now telling the press that Sotomayor would restate her speech if given the chance.

Even though the Dem press has been generally running interference on this, even Team Obama can see the problem here.

NPR's Nina Totenberg had a feature yesterday with a surprisingly skeptical take on Sotomayor's speech and the shadow it casts over her summary rejection of the Ricci appeal, which Totenberg expects to be reversed on the eve of the Sotomayor confirmation hearings.
 

First, Scotusblog founder Tom Goldstein and company has done yeoman work actually looking at Sotomayor's decisions. See also his discussion about her on America and the Courts (go to C-SPAN website). Bottom line? She's a very smart and studious judge and a moderate.

Regarding the supercomputer thing, I question that -- some of the people mentioned probably would fear that, since their rulings would be labeled "irrational" by said supercomputer.

The problem is often lack of honesty. There is a concern that certain sorts care only about "policy" and the result is that judging is just about "power" and not judgment.

They have a solution! Just look at the text or the original understanding! Cheers! Darn if they often disagree with literalists like Black or people like Souter and Stevens who challenge their understanding of original understanding (e.g., see Souter's scholarly dissent in Seminole Tribe and his challenge to Scalia in the Ten Commandments case).

Scalia is a case in point here. He fears the libs will run wily-nilly. His path is the road to judicial restraint. This has not been the case in practice. Like a unicorn, the search continues. Anyway, even if the living Constitution approach is more messy, if it was what was intended (plus what realistic judging brings), that shouldn't matter to the originalist.

Oh, President Obama's chapter about his views of the Constitution and judging in "The Audacity of Hope" is well recommended too. It foreshadows the Sotomayor nomination pretty well.
 

Our resident LLB* states:

"Obama and Gibbs are now telling the press that Sotomayor would restate her speech if given the chance."

out of context. TPM yesterday provides a 33 second clip of Obama's statement under the title "Obama: I'm sure Sotomayer Would 'Restate' Line From 2001 Speech." Unfortunately I cannot link to this because of my geezer handicap, but Obama makes reference to the "entire sweep of her essay" as demonstrating that she is highly qualified to serve.

And our resident LLB* continues:

"NPR's Nina Totenberg had a feature yesterday with a surprisingly skeptical take on Sotomayor's speech and the shadow it casts over her summary rejection of the Ricci appeal, which Totenberg expects to be reversed on the eve of the Sotomayor confirmation hearings." Can someone link to this to test his characterization of Nina's "surprisingly skeptical take"? As to the Ricci appeal, the unsigned "summary rejection" was by a three-judge panel of which she was a member. As to Nina's expectation of reversal, surely Roberts, Scalia, and Alito would reverse, as well as Kennedy. Based upon past performance, Thomas may once again join Scalia at the hip. But maybe, just maybe, Thomas may heed Colby King's column in today's WaPo regarding Thomas' vote on Ricci if he wishes to be considered other than as a token by conservative.

*Little Lisa's bro
 

I read and enjoyed Mark Stein's article I referenced in a comment above. He was having a little fun with Jack Balkin and Larry Solum and with New Originalism. Mark is such a clever writer that it would be difficult getting mad at him. It turns out that Mark is a self proclaimed non-originalist but does not go into detail other than this footnote:

"20. See Mark S. Stein, Originalism and Original Exclusions,____ Ky.LJ ___ (forthcoming)"

I trust this forthcoming article will soon be available via SSRN. Take that, New Originalists Larry, Jack and Randy Barnett.
 

Further regarding Mark Stein's article, I did not note any reference to "bright line."
 

Mourad:

The UK does not employ originalism because you do not have a written constitution which binds your government and its courts. Parliament and your courts simply add to and subtract from the rights of Englishmen at will (subject to EU law, now that you have surrendered part of your sovereignty).

Americans revolted because of Britain's cavalier attitude towards their rights and demanded a written binding Constitution and Bill of Rights to check their own government. Sotomayor's "legal realism" ( i.e. living constitutionalism) attacks the heart of that constitutional project.
 

Bart:

By "damage control", do you mean simply taking the path of least resistance over the conservatives (typical) manufactured hissy fit?
 

Our resident LLB* informs Mourad:

"The UK does not employ originalism because you do not have a written constitution which binds your government and its courts."

Perhaps LLB* might read John Gardner's "Can There Be a Written Constitution?" available via SSRN at:

http://ssrn.com/abstract=1401224

on this subject.

And our resident LLB* then states:

"Sotomayor's 'legal realism' ( i.e. living constitutionalism) attacks the heart of that constitutional project."

Of course our LLB* does not choose a particular brand or version of originalism that comes in many flavors but he is quick to equate "legal realism" with "living constitutionalism" to brand Sotomayor preemptively, unless he can cite to her admission of such. And there are distinctions between "legal realism" and "living constitutionalism." In fact, some look upon "living constutionalism" as a version of "originalism."

Getting back to Prof. Gardner's article, in an earlier comment on a different post on this Blog, I noted the following at page 37:

"And since judges are fallible human beings like the rest of us it had to be that way. So even if one says, crazily, that judicial law-making is always erroneous, one cannot avoid reaching the same result: Any constitution that provides for authoritative adjudications regarding its own application cannot but be to some extent a living constitution, i.e. cannot but contain less law at its inception than it comes to contain later."

*Little Lisa's bro
 

mourad:

thanks for "in westminister abbey" .. i continue to be educated by your most excellent posts ..

j..
 

"The NAACP is not racist. A national organization for the advancement of white people would be. ...

Similarly, it isn't racist when a Latina federal judge says the judiciarly would benefit from more Latinas on the bench."

2 points:

1) I think it's conceivable to imagine a non-racist organization for the advancement of whites. The argument you'd make, of course, is that blacks suffer racial discrimination, are disadvantaged, whether for traditionally racist or structurally racist reasons, in many areas of American life, whereas this isn't the case for whites. However, if there were a group that focused on the disadvantages that whites disproportionally suffer - for example, bad education in predominantly white, poorer rural schools, racial preferences in hiring - not out of some sort of white pride, but out of genuine concern for issues that mostly affect the white community, I'm not sure that there'd necessarily be anything racist about it.

2, Sotomayor didn't argue for more Latinas on the bench. She said that she would hope that wise Latinas would make better decisions, more often than not, than white men who haven't have had "that experience" (the experience of being Latina, I suppose). From which it seems to follow, if that hope came true at least, that we'd be better off with an all-Latina Court. She doesn't say that the Court, as a collective, would make better decisions with Latinas on it; she says that the individual Latina (she hopes) makes better decisions than the individual white man. Now, I think it's fair to assume that she's mostly talking about discrimination cases, which at least gives the remark some sort of sense. But even then, I don't think that it follows that because one has an experience of being a racial minority, one would more often than not make better rulings in discrimination cases - unless of course one's assuming what 'better' rulings would constitute in this regard.
 

Sotomayor makes a two part argument: (1) Latina women enjoy a richer life experience because of their race and gender, and (2) That richer life experience makes them better jurists than white men.

It takes two steps to get there, but Sotomayor's bottom line is indeed that the alleged superiority of Latina women in jurisprudence comes from their race and gender
No, clearly not, and its very simple to show. A hispanic in South America would not have a superior understanding of discrimination, at least race-based. However, Sotomayor would argue those of indigenous tribes still there would have superior judgment on issues of discrimination, over the dominant hispanic population. Right or wrong, her argument is based on experience, not race. the race and gender are merely conditions, not causitive. A minority's race allows the dominant culture to discriminate against her, thus giving her the experience which Sotomayor believes allows the person to be a better judge of those issues. It takes willful dishonesty or blinding ignorance to interpret the argument differently. Sotomayor's thesis is that a discriminated person in a society would reach better conclusions on issues of discrimination in a society than one who has never faced actual discrimination. Probably, she would have said an Irishman, Chinese person or an Italian would be a better judgment of discrimination in the late 1800's. The specific race, gender, or ethnicity of a person is immaterial, it is the treatment that particular group faces in the society as a whole that matters (the experience) - thus, the argument does not assert an innate superiority in one particular group over another, and is not racist. QED
 

tray, did you read the full speech?
 

Nerp:

Nice try.

The basis for Sotomayor's argument that Latinas possess superior judicial ability over white men was not the fact she may have experienced discrimination, but rather "the richness of her experiences." One does not usually confuse suffering discrimination with a rich life experience.
 

For a much better analysis of Sotomayor's speech than tray gave, see Brad DeLong here.
 

Let's get this out on the table, Bart. Are you claiming that a person who has never experienced discrimination, such as Roberts, for example, would be as qualified to judge a case where discrimination was a central issue as someone who had experienced discrimination?
 

Mr. DePalma,

As is often the case, you have defeated your own purpose:

The basis for Sotomayor's argument that Latinas possess superior judicial ability over white men was not the fact she may have experienced discrimination, but rather "the richness of her experiences." One does not usually confuse suffering discrimination with a rich life experience.
It is nice that you now recognize the judge was noting the "richness of her experience" as opposed to, say, "her superior genetic composition" or "the higher quality of our breeding." If as you note, the "richness of her experience" is the quality creating the superior judge, then it is indeed not racist, as any minimally literate person could tell from the speech.

This is not complicated. It is the experience of being discriminated against that, under Sotomayor's theory, makes one a superior judge in adjudicating discrimination cases. Obviously, due to her own characteristics, and considering the audience to whom she was speaking, she used the example of a wise latina. One would think, from looking at the speech as a whole, Sotomayor believes any woman would come to a better conclusion more often than a man in a discrimination case, or a African-American would come to a better conclusion than a white person in a discrimination case, because of the traditionally discriminated-against person's experience dealing with discrimination. Debate whether that's true, but, as is typical, you are more concerned with cheap political rhetoric than actual legal analysis.

Now, I would like to see this debate go in a potentially productive direction. I believe the currently limited Sotomayor debate says very little about her, an awful lot about the desperation of the right-wing, and even more about the spinelessness of the left. Specifically, the "racist" crap is ludicrous, but anyone half-way honest recognizes that. The one that bothers me is the "appeals courts make policy" debate. Of course they do, that is the nature of the common law and our Anglo-American legal system. If you don't like it, move to France. But why is the left (or the shells of human beings who represent it, in the form of the democrats), so afraid to actually correct the conventional wisdom? Why can't Obama, who has been good at times in treating the American people as adults, take this head on (especially while he has political capital and a fairly bullet-proof nominee)? Why don't the dems learn their lesson already - as long as you allow the other side to artificially define the terms of the debate, you enter the game at a disadvantage? I would, for one, love to see the public become better educated on the evolution of the law, and the history and beauty of the common law. Thoughts?
 

I certainly agree with you nerp, and digby does too.

I think these are all teachable moments, and I'd like to see elected officials take advantage of them. I think the calm contrast of explanation would work especially well in contrast to the racist hysterics of Newt and Rush.
 

This is a bit OT, but not altogether irrelevant to commenting here on Balkanization: I do not understand a certain kind of cognitive ...performance, for lack of a better word, that seems very common among blog commenters.

It also sometimes appears with college students, so I will try to illustrate with a recent example from one of my courses.

I had a pretty good student, very engaged and serious-minded. He got some bee in his bonnet about Aristotle. I don't know why. He started coming to my office and insisting that Aristotle 'thinks X.'

I would observe that such a claim was completely incompatible with all we had learned in our course about Aristotleian thought. He would point to a line here or there and pounce on it, declaring, "SEE? He says 'X.'"

I would note that (a) this is a translation from the Attic Greek; (b) other translations differ; (c) the translator in question provides a footnote explaining that this is a problematic translation, likely to mislead uncareful readers; and (d) again, even if this one line were a correct translation of a claim from Aristotle, it was but one short line from one book (of the many we have from Aristotle) and clearly incompatible with important tenets of Aristotle's thought.

But, the student just got more and more aggravated, spoke more wildly, and just could not seem to even read the text clearly. Sometimes he would veer off in another direction, with either a new criticism of Aristotle or on some other topic altogether. At one point, he started to give me a hard time about my conception of 'the humanities.'

We ended the course on rather strained terms. I just could not make sense of it. How can someone become so fixed on an idea that s/he cannot process contrary evidence or follow a simple line of reasoning? And, why? How many ideas are of such importance to an individual that s/he loses all good sense or openness to facts?

I mean, sure, one can be fixated on the fidelity of one's partner, or the goodness of one's parents, or one's prospects for surviving a terrible disease, or some such. But whether Aristotle really thought 'X' or Sonia Sotomayor is a sexist racist?
 

Bart DePalma said:

In short, John Roberts as a white man would be a racist and a sexist for making Sotomayor's arguments on behalf of white men, but Sotomayo as a Latina woman cannot be a racist and a sexist for making her arguments on behalf of Latina women?

If we lived in a world where every Supreme Court Justice save four had been Latinas, and there had never been a white male on the Supreme Court, I wouldn’t consider Roberts saying such a thing racist, while Sotomayor saying what she said is such a world would be racist.

As ususal, Mr. DePalma pretends that there is no such thing as context. I imagine that like many other “conservatives”, he never complained about racism or sexism until people other than while males started getting a few breaks.
 

Mourad:

Here, in America, there's at least one more possible "theme". Admit that Sotomayor is qualified and a woman of integrity (as SENATOR Obama did with Alito) but still vote against her on idiology.
 

There is a political sporting aspect of commenting by the MSMedia and in more recent years in the Internet on a president's selection of a nominee for SCOTUS. Pat Buchanan is out there to protect white males. His schtick keeps him in the limelight; and by the way, it's a living. That's why he throws his hat in the political ring by threatening to run, or actually running, for political office.

The racist and gender themes of objectors to Sotomayor seem to be fading. But in yesterday's NYTimes there is a news article pointing out that if Sotomayor passes muster six (6) of the Justices would be Catholics. Most likely this theme will go no place in challenging Sotomayor, except with the extremists of various political parties. I don't expect atheists and agnostics to challenge Sotomayor on this or any other ground.

What will be the next cockamamie theme of those objecting to Sotomayor? Perhaps her health situation with diabetes? The fact that she enjoys eating pork doesn't seem to have stirred up Jews and Muslims. Her Ivy League education? I don't think the vast majority of voters who did not attend Ivy League schools will get stirred up with that theme. Her East Coast connections in growing up and going to college and law school? I don't think the vast majority of voters without East Coast connections will band together to challenge her nomination. A former Bush economist has tried to attack her by demonstrating that she doesn't save enough of her earnings. But he was shot down quickly in flames.

The game will go on as objectors look under more rocks - that's how they get their rocks off, especially white males whose machoness won't permit them to accept a female, especially a Latina - in their efforts to notch their political belts. Maybe one of the TV networks will make a reality series out of this.

I personally was hoping Obama would nominate Prof. Jamal Greene, a young African American constitutional scholar, who could offset Clarence Thomas's anticipate long tenure on SCOTUS.

Of course we all await the Senate Judiciary Committee hearings to provide the theatre. Let's see how she comports herself. Let's see how the Committee members behave. Let's see how witnesses, pro and con behave. Let's see how the public, the MSMedia and the Internet react to the hearings. Assuming the Committee approves her nomination, we will all await the deliberations of the full Senate, with the usual party splits. And when the dust settles, we may have a new member of SCOTUS. She would add to the diversity of the Court, although it would be reduced to just one Protestant Justice (who happens to be a wonderful white male). And you know how many Protestant voters are out there. What a wonderful country. Looking back in the early years of SCOTUS to when ALL of the Justices were Protestants, we've come a long way.

In the meantime, keep an eye on all those getting their rocks off with this nomination. Who knows, science may eventually develop a female equivalent of Viagra. I wonder how white males might react to that.
 

On the subject of the originalist heresy, I think it is pertinent to point out that the Anglo-Norman common law legal system encompasses many more territories than that of England Of the 70 or more countries and territories other than the USA comprising that tradition, the overwhelming majority have written constitutions: Even Bart may know about Australia, Canada, New Zealand and India, and he has surely heard of Ireland since he professes to be in part of Irish descent. London (in the shape of the Law Lords sitting as the Privy Council) is still the final appeal destination of about 30 jurisdictions.

It is one of the glories of the common law tradition that the various final courts of appeal of the common law tradition routinely cite the others' jurispurudence and treat their decisions as persuasive.

In none of of these many non US jurisdictions has the originalist heresy taken hold, so one might consider the position of dear Bart and his fellow travellers to be somewhat akin to that of the fond mother at a passing out parade whose son was marching off the wrong foot: "Look, they're all out of step except my little Johnny!"The consensus common law view of the task of constitutional interpretation is well articulated in this passage of the Judgment of the Privy Council in Reyes v. R (Belize) [2002] UKPC 11 at paragraphs 25-26.

I think the key to the reason for the growth of the originalist heresy in the USA is to be found in the Privy Council's reveference to SCOTUS authority when holding:

"A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the constitution, but it is required to consider the
substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society"While the supreme courts of the civilised world are concerned to ensure the public enjoys the benefit of the fundamental rights protected by constitutional guarantees in the greatest possible measure, the originalist heresy has developed in the USA as a pretext to enable the US courts to emascaulate such protections. A case of the law being misused to defeat rather than advance the ends of justice.

I contend that in common law systems we do not entitle our superior judges as "Justice" for nothing. The judicial function, above all at the appellate level, is about using the law as a tool in the service of justice, not as a tool to subvert it.

I very much agree with Nerpzillicus when he observed "I would, for one, love to see the public become better educated on the evolution of the law, and the history and beauty of the common law." to which I would add that it is not just the public that needs to become better educated. I would observe that there is room for much improvement in the curricula of law schools too.
 

As a follow up to Mourad's comments, I recommend the following articles by Prof. Jamal Greene on originalism:

"Selling Originalism" available vis SSRN at

http://ssrn.com/abstract=1273640

and

"On the Origins of Originalism" available via SSRN at

http://ssrn.com/abstract=1357541

The second article contrasts the U.S., Canada and Australia on originalism. Each article includes a history of originalism in the U.S.

Back in my law school days in the early 1950s, the subject Legal History was not that attractive or interesting. Now in virtual retirement, I'm back into ConLaw not as a practitioner, but my interest in justice. A lot has happened since I got my LLB in 1954 (subsequently converted to a JD) in ConLaw, beginning with the Warren Court. A lot had happened with the New Deal in ConLaw as well. The world had changed dramatically with the Great Depression and WW II by the time I started to practice law. My revived interest in ConLaw has also involved me with Legal History. Between Larry Solum's Legal Theory Blog and Mary Dudziak and Dan Ernsts' Legal History Blog, I'm almost a full-time student with the benefit of access to articles via SSRN much more quickly than via law reviews. Perhaps Legal History is more significant in law schools today. It should be. But the problem may be that not enough time can be devoted to Legal History in law schools. Add to this the positive contributions of Political Science to the law. So much to read, so much to learn, but so little time to do it.
 

I mean, sure, one can be fixated on the fidelity of one's partner, or the goodness of one's parents, or one's prospects for surviving a terrible disease, or some such. But whether Aristotle really thought 'X' or Sonia Sotomayor is a sexist racist?

CTS, what comes to mind for me is the difference between understanding the world via articles of faith vs adopting (fully) the scientific method. Getting to the essence of the scientific method requires a pretty significant investment of mental energy. That is, when you really think about it, what the scientific method implies is that we don't really know anything for certain. Knowledge is provisional and it comes in varying degrees. And--a fundamental truth of human nature--uncertainty is basically not a particularly comfortable state of mind. But to embrace a scientific outlook on the world means to accept uncertainty as a constant companion.

There is an inherent human urge to attach ourselves to beliefs because it (apparently) relieves some of that discomfort of uncertainty. A lot of the behavior of ideologues makes sense from this point of view. As with straining to make Sotomayor out as "X", the highest priority of some people is not to read her speech and explore its meaning, but rather to quickly grasp onto a shard of evidence and rush to a conclusion which was in fact already held as an article of faith.
 

Mourad:

Your arguments sound like those of a corrupt Catholic church during the Reformation. It is useful, I suppose, to view the movement for common law/living constitutionalism in the United States as a form of counter-reformation and return to the bad old days of arbitrary rule by men rather than a rule of law.
 

mattski, you say:

"CTS, what comes to mind for me is the difference between understanding the world via articles of faith vs adopting (fully) the scientific method."

I think I understand your thinking as it relates to Sotomayer, but I feel that "articles of faith" on one side of the versus needs some clarification. Your comment closes with this:

"As with straining to make Sotomayor out as 'X', the highest priority of some people is not to read her speech and explore its meaning, but rather to quickly grasp onto a shard of evidence and rush to a conclusion which was in fact already held as an article of faith."

I find it difficult accepting that the strained attacks of race and gender being spewed against Sotomayor demonstrate an "article of faith" on the part of such commenters. Rather, it is hatred. For them, perhaps, the appointment of Sotomayer would be a zero sum game for white men. That would not be an "article of faith" as I understand the term.

As for the other side of your versus, it would seem difficult applying the scientific method fully to Sotomayor's nomination. There is always an element of subjectivity to such nominations.
 

Shag:

So, do you think this really is about Sotomayor, herself - that she is a Latina (Maybe more anti-Hispanic for some, more misogynist for others) and certain white men cannot stand the thought of a Latina on the bench? That actually would make some sense to me: that one's passions override reason.

I guess I have been hoping that this not the most wide-spread motivator among those who just seem so invested in branding her as a this or a that. On the other hand, Mattski's explanation, while sound, does not get to the deeper question of 'why be so invested in this. Your hypothesis of racism and/or misogyny does get to that question.

Of course, I'm still left wondering why my student became so obsessed with misunderstanding Aristotle.
 

"Are you claiming that a person who has never experienced discrimination, such as Roberts, for example, would be as qualified to judge a case where discrimination was a central issue as someone who had experienced discrimination?"

I think this is certainly and obviously the case. Just as whites may be biased against plaintiffs claiming discrimination out of a lack of experience of these matters, as Sotomayor argues was the case for Holmes and Cardozo (and, she could have added, all sorts of other brilliant white jurists, like Taney for example), I tend to think that minorities are biased in favor of plaintiffs claiming discrimination - not that their experiences of discrimination somehow give them access to the right answer in these cases. The one is isn't in my view any better than the other, although some, for ideological reasons, might certainly welcome judges with pro-minority bias on the Court. Which is fine, I think, so long as you admit that, for ideological reasons, you want judges who will come down in favor of plaintiffs alleging racial discrimination, or Congressional efforts to curtail it (the Voting Rights Act for instance), and don't go around claiming that minority judges yield objectively or legally 'better' decisions on these issues.
 

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I find it difficult accepting that the strained attacks of race and gender being spewed against Sotomayor demonstrate an "article of faith" on the part of such commenters.

Shag, we all use and interpret language in different ways, so misunderstandings are inevitable. I'm using the term 'article of faith' to suggest that the attacks on Sotomayor are for the most part based on prejudices about her in particular and "liberals" in general. A prejudice, or a 'pre-conceived idea' in this context I am calling an article of faith because it is based not on a careful observation of the real world but rather on ideas to which people have become attached to as a result of the 'company they keep' so to speak. Ie, an article of faith is a belief that is not based on patient observation. Otoh, patient observation is the heart of the scientific method.

CTS, I don't know why your student took that way to a notion about Aristotle, but certainly I know that I've done similar sorts of things (mostly in my youth, I hope!) I was trying to say that the fear of uncertainty has a tendency to make us glom onto ideas, often for no particularly good reason.

Re-reading my remarks, they strike me as highly unsatisfactory. Mostly, I feel I can relate at some level to that impulsive "lunge toward certainty" you describe in your student.
 

"The one is isn't in my view any better than the other, although some, for ideological reasons, might certainly welcome judges with pro-minority bias on the Court."

There is some judgment being made here respecting results. That is, the assumption is that the Taney or Holmes (who supported various racist opinions) are promoting the wrong view of the law. Many in this context are not going to run away from this idea.

I guess you can argue about "ideology" here. You can also argue about the correct view of the law in general. Thus, a judge more likely to be supportive of a healthy (a loaded word in part, I know) view of the Equal Protection Clause very well is arguably correct on the law.

The clause intended to benefit minorities as does anti-majoritorian judicial review in various cases. It is quite right that this is not "obviously" correct without further discussion.

If you think the law was right before the "bias" of a Thurgood Marshall interfered, sure enough, it might be a problem.

I would deny your stance is "obvious" though. It is clearly open to debate, which is fine.
 

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To add a specific point, examination by Glenn Greenwald and others suggests that Sotomayor in particular is less likely to be 'biased' given her technical application of the law, application that in many cases strictly applied it even to sympathetic minority plaintiffs.

The various sides of Sotomayor, including her ADA service in Manhattan that provided her some sympathy to the police and prosecutorial forces, suggests the complexity of this appointment.
 

Tray,

Thanks for answering my question. I believe that both common sense and the results of psychological experiments (for example, see this) indicate that, in fact, those who have never been discriminated against are significantly less able to detect discriminatory behavior.

Given that demonstrable fact, the statement that a member of a minority would be a better judge in a case involving discrimination appears to be a good working hypothesis.
 

mattski said...

I'm using the term 'article of faith' to suggest that the attacks on Sotomayor are for the most part based on prejudices about her in particular and "liberals" in general.

Please.

No one is accusing Sotomayor of racism or sexism because she is a Latina or a liberal

No one even thought to accuse Sotomayor of racism or sexism until her own racist and sexist arguments surfaced.

You folks on the left are far too varied in your points of view to pigeon hole you into some box labeled "leftwingnut." For example, Sotomayor most assuredly shares some views and not others with her fellow liberals on the Supreme Court and and her fellow woman - Ginsberg.

However, far too many of you on the left do share the propensity to play the race and gender cards.
 

Bart,

"Article of faith" describes your views of the left very well indeed. You have shown yourself impervious to evidence, uninterested in informing yourself, way too many times to count. nerpzillicus elegantly showed how confused & empty your Sotomayor gambit was.

Hilzoy, for example:

A fantasy world in which your own preconceptions are always confirmed is a pretty sorry substitute for the actual world around us, in all its unexpected richness. But it's even worse when your own preconceptions are so very, very ugly.
 

It appears that the political cartoonists have discovered Sotomayor and her race and gender politics. Kevin Siers of the Charlotte Observer provided the pithiest skewer:

Frame one of the cartoon has a head and shoulder drawing of Sotomayor giving her now infamous assertion:

“I 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."

Frame two of the cartoon now has Sotomayor holding the Constitution and continuing her comments:

"...Madison...Hamilton...Jay...to name a few white males..."

If the comedy and late night talk shows start likewise chiming in, Sotomayor is toast.
 

Ann Althouse observes why academia and Joe six pack have completely different takes Sotomayor's wise Latina comments:

Yet it was not an unguarded spontaneous outburst. It was a carefully written speech delivered to a particular audience. Sotomayor was saying the things that would be well-received by her audience. Indeed, I have trouble getting roused by her statement — "I 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" — because I've been immersed for a quarter century in the kind of law school environment that she addressed. Here, we sympathetically smile and nod at such things. We nurture racial analysis. We create a school of thought and hire people to write about Critical Race Theory. What Sotomayor said was actually a weak, feel-good version of the kind of racial talk that is widespread in the legal academy.

Sotomayor was invited to give that speech, I assume, because she is Latina. It was for publication in the Berkeley La Raza Law Journal, in a symposium called "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation." She had to address the topic. She did so in a notably non-radical fashion. She was appropriate for that occasion. Now, it sounds bad to people who don't hear this sort of thing in the ordinary course of life, but I think it says very little about how racially Sotomayor's mind works or how inclined she is to dispense racial favors from the bench.



Over a decade removed from law school, I had forgotten how bad the race and gender identity politics can get there. To offer a personal anecdote, one of our three first year property professors actually spent most of a semester teaching about the property rights of slave holders in the old South - a subject I am sure often comes up on bar exams - denying her students the education in property law they had paid for. The administration did nothing at all about the dozens of complaints filed against this "professor" every year. Rather, they used this prof to celebrate the diversity of the school of law.

This explains some of the posts I have been reading.
 

Frame one of the cartoon has a head and shoulder drawing of Sotomayor giving her now infamous assertion:

“I 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."

Frame two of the cartoon now has Sotomayor holding the Constitution and continuing her comments:

"...Madison...Hamilton...Jay...to name a few white males..."


Actually, you are making her point fairly well. Madison, as well as his friend Jefferson, could write so eloquently about liberty, yet they owned slaves. Maybe, just maybe, "a wise [black slave] with the richness of her [or his] experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life" on the subject of how liberty-loving Virginia truly was.
 

nerpzillicus:

One would think, from looking at the speech as a whole, Sotomayor believes any woman would come to a better conclusion more often than a man in a discrimination case, or a African-American would come to a better conclusion than a white person in a discrimination case, because of the traditionally discriminated-against person's experience dealing with discrimination. Debate whether that's true, but, as is typical, you are more concerned with cheap political rhetoric than actual legal analysis.

Bart think the white guy has the better perspective: "Hey, what's the problem here anyway? Pull yourself up by your own bootstraps. I had to put off my Bimmer a year once too because my parents cut me off for partying too much. But I worked hard to get it; I only partied on weekends...."

Cheers,
 

Picture this cartoon of our resident LLB*:

Frame one: Depicts LLB* with his Backpack of Lies (similar to the chop-chop photo that accompanies some of his comments).

Frame two: Depicts LLB* again with his Backpack of Lies supported with one leg on Gingrich and the other on Rush.

Frame three: Describes the three-way in frame 2 with a limerick, the last three lines reading:

"All through the night
They had a great fight
Over who would do what and to whom."

(For the first two lines of the limerick, use your imaginations to describe this triangle of white men who are offended by a Latina's nomination. First Prize is a one-year subscription to the Weakly Standard; Second Prize is a two-year subscription.)

*Little Lisa's bro
 

Bart on the common law and constitutional interpretation:-

"Your arguments sound like those of a corrupt Catholic church during the Reformation. It is useful, I suppose, to view the movement for common law/living constitutionalism in the United States as a form of counter-reformation and return to the bad old days of arbitrary rule by men rather than a rule of law."I hope readers will forgive me if I point out that the generally received wisdom is that the constitutional purpose of both the English Bill of Rights and the later US Bill of Rights which in parts makes use of the ipsissima verba of its English law progenitor was to entrench core values and protect them against their arbitrary emasculation by either the executive or the legislature.

The embedding of core values and their heightened protection is a significant indicator that in the state concerned the rule of law prevails over the arbitrary rule of men.

One only has to listen to Conservative talk radio host and convicted felon G. Gordon Liddy to appreciate the deeply sexist and racist thought of the conservative grassroots:-

"Let's hope the key conferences aren't when she's menstruating or just before she's going to menstruate....I understand that they found out today that Miss Sotomayor is a member of La Raza, which means in illegal alien, “the race.” And that should not surprise anyone because she’s already on record with a number of racist comments...."The crudity of those remarks is, of course, extreme. But there still those both in England and the USA who under the surface veneer of civil speech deep down believe that woman's proper place is "without shoes in the kitchen, looking after the children and preparing her master's evening meal".

The law, of course, countenanced such inequality until relatively recently. Without going back to the status of women before the Married Women's Property Acts, one might recall that in Bradwell v. State of Illinois, 83 U.S. 130 the US Supreme Court held that a women could not enter the legal profession with Justice Bradly in his concurring judgment stating:-

"The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life... The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”

Here in England, we did not see a female appointed to the law lords until Baroness Hale was appointed in 2004. In 1984 Hale had written in "Women and the Law":-

"Deep-rooted problems of inequality persist and the law continues to reflect the economic, social and political dominance of men.".

Unsurprisingly, therefore, she too has also long been a target of the right wing. Her appointment in 2004 was attacked by the Daily Mail in an article denouncing her as a "a hardline feminist" whose appointment "epitomises the moral vacuum within our judiciary and wider establishment".

So what Bart and his fellow travellers are doing is that which accords perfectly with the conservative equivalent of the Azimov Three Laws of Robotics.

The Four Laws of Conservatism:

1. Never move unless there is no alternative;
2. If you must move, try to move backwards;
3. If you cannot move backwards, try to go sideways;
4. NEVER MOVE FORWARD!
 

David Stras's post "A Rejoinder on Candor" does not permit comments but since his post relates to Brian's post, a comment may be appropriate.

Stras refers to the "candor" of Robert Bork. I first became aware of Bork in the late 1970s when I read - and frequently reread - his "The Antitrust Paradox." At the time my practice had developed to the point of addressing antitrust issues for clients. Bork's book was a good guide to understanding antitrust laws, which he skewered. SCOTUS over the years since its publication in 1978 has adopted some of Bork's challenges. With the Reagan years, the impact of antitrust laws diminished greatly, perhaps reducing the ranks of the antitrust bar significantly. Now with Obama as President, there may be a revival of interest in enforcement of antitrust laws (which may provide much needed work for attorneys).

While I have not gone back to review Bork's appearances before the Senate Judiciary Committee, I do recall that "The Antitrust Paradox" was a significant issue. Was this "candor" on Bork's part? In his book Bork was challenging SCOTUS antitrust decisions. Bork's book was a scholarly work. The Committee had to be concerned with the direction Bork might take the Court if confirmed. Bork had an extensive paper trail on how he might vote if confirmed with this book. Perhaps rather than "candor" Bork was faced with the paradox of seeking appointment so he might change the direction of the Court.

With respect to Sotomayor, she did not have a similar paper trail before her confirmations as a Federal District Court Judge and as a Circuit Court of Appeals Judge. Sotomayor has rendered many opinions in her judicial capacities. That's the true paper trail for the Committee to examine in considering her appointment. As for a sentence or two in her speeches off the court, context must be kept in mind. Those few sentences do not suggest that she, as a Latina, is prepared to change the direction of the Court to the extent that Bork would have.

By the Bybee, might the relaxation of antitrust laws beginning with the Reagan years, as influenced by Bork, had a tad of responsibility for the financial and banking crises developed during the Bush/Cheney years (as well as the S & L failures in Reagan's years)?
 

The Dem left playing the race and gender cards during judicial nominations to cover for their unpopular judicial philosophy is the worst form of hypocrisy.

As Judge Sotomayor observed, the public expects the law to be static and judges to be impartial, while her agenda and that of the political left is to have the judiciary change the law to obtain political objectives that cannot be obtained democratically.

You folks on the Dem left support Sotomayor because she advances your judicial agenda. Her race and gender are merely gravy for your race and gender politicians and a convenient shield from criticism off which you can play the race and gender cards.

However, when a minority and/or female nominee opposes your judicial agenda, race and gender are no longer a social advance to the left and it is open season on the nominee. See Clarence Thomas and Janice Rogers Brown.

Spare me your dishonest self righteousness about race and gender. The issue is Sotomayor's judicial philosophy and her ability to comply with her oath of office to be impartial.

At least, Ann Althouse was honest in her appraisal of Sotomayor and came up with a reasonable explanation for her conduct: Sotomayor was not mistaken in her words. Rather, the judge was simply telling the race and gender politicians to whom she was speaking what they wanted to hear and this sop to the left will not necessarily translate into favoritism on the bench. In short, she was lying when she was promoting race and gender politics.

This is a reasonable and somewhat reassuring argument, but does not say much for Sotomayor's intellectual integrity. However, given her other speeches and comments over the years promoting this same brand of legal realism, I think Althouse is being kind.
 

Once again our resident LLB* fails to submit proof:

" . . . while her agenda and that of the political left is to have the judiciary change the law to obtain political objectives that cannot be obtained democratically."

for this claim of Sotomayor's agenda. Is her agenda as detailed as Bork's when he was a nominee? LLB*'s inner Latina is still struggling to get out.

By the Bybee, "democratically" we do have a new game in town.

*Little Lisa's bro
 

Bart DePalma:

One does not usually confuse suffering discrimination with a rich life experience.

Reminds me of Lee Hayes's quip:

"If it wasn't for the honor, I'd just as soon not have been blacklisted."

(link here)

I doubt, however, that Bart will understand what I'm getting at. Even when able, he seems purposefully obtuse.

Cheers,
 

... return to the bad old days of arbitrary rule by men rather than a rule of law.

Sez the guy that thinks that Dubya can wiretap and torture anyone he wants, because it's "expedient" (or just because he thinks that's the best thing to do, and no one can gainsay him)....

Cheers,
 

tray:

... Which is fine, I think, so long as you admit that, for ideological reasons, you want judges who will come down in favor of plaintiffs alleging racial discrimination, or Congressional efforts to curtail it (the Voting Rights Act for instance), and don't go around claiming that minority judges yield objectively or legally 'better' decisions on these issues.

One of the more difficult hurdles to overcome in discrimination cases (outside of SOL "interpretation"; see Ledbetter) is standing. You need to "prove" actual discrimination (and invidious intent) -- unless your name is Dubya, of course -- before you even walk in the door, while if it were a simple civil case, all you need is well-pleaded claims which, if supported by enough facts to be had at discovery, would show your case. And this precisely in such circumstances where the ability to get this proof is most difficult; that is to say, when you need to get the defendants to admit racism when they know in advance that they need to cover their trail and that such behaviour is not just illegal but socially and morally detested as well.

The white folks that keep saying, "what's the problem, show me the evidence", are blind to what those on the receiving end have known pretty much all their lives.

Cheers,
 

However, when a minority and/or female nominee opposes your judicial agenda, race and gender are no longer a social advance to the left and it is open season on the nominee. See Clarence Thomas and Janice Rogers Brown.

It's not our problem, Bart, that the only minorities that you can get to adhere to your visions are incompetents, whackjobs, and/or slavering sycophants. You might ask yourself why that is, instead of insisting that we don't see these people are the Carswells of our day. If the visions of the Republican party had any legitimate appeal to minorities, you'd see a bit more than the dismal 10% such types voting for them.

Cheers,
 

Arne says:

" If the visions of the Republican party had any legitimate appeal to minorities, you'd see a bit more than the dismal 10% such types voting for them."

The real fear of the Republican party is that in years to come "white men" may be a minority so that the Republican party must take steps now to preempt this by attacking a Latina. Might that be similar to the concerns of slaveholders that led to the Civil War? Maybe the Republican party should be looking for a modern day CJ Taney for its rescue.
 

It's not our problem, Bart, that the only minorities that you can get to adhere to your visions are incompetents, whackjobs, and/or slavering sycophants.That's really an inappropriate comment. I think Bart's dead wrong about Sonia Sotomayor, and I don't agree with all that much of the jurisprudence of Clarence Thomas or Janice Rogers Brown, but they are both very smart people who (like Judge Sotomayor) have impressive personal stories and in each case, at least some of their opinions have had great persuasive force.

I have no problem with criticizing Thomas and Brown based on their ideology-- I do that too-- but the idea that they are dumb or unaccomplished is just plain wrong.
 

Dilan:

That's really an inappropriate comment. I think Bart's dead wrong about Sonia Sotomayor, and I don't agree with all that much of the jurisprudence of Clarence Thomas or Janice Rogers Brown, but they are both very smart people who (like Judge Sotomayor) have impressive personal stories and in each case, at least some of their opinions have had great persuasive force.

Beg pardon to disagree, but Thomas is really not too bright. Of course he has the help of exclusively FedSoc clerks to write opinions, but leave him on his own, and he's not quite there. This was evidenced, I think for me, by watching some high school kid asking him about the rationale in BSA v. Dale the year after that decision was handed down (a decision he signed on to, and one of the landmark decisions of the prior term, if not of all recent times). Thomas replied that he didn't remember. That's either incompetence or intentional dishonesty (or perhaps honesty, who knows, maybe the "rationale" wasn't nearly as important as the result and it was indeed forgettable).

As for Rogers Brown, she's just an extreme RW "libertarian" crank (what I'd term a whackjob). A sort of judicial David Horowitz.

But I was talking in general, not just in the judicial field.

There's the non-judicial Republican minorities. You can't say enough about, say, Michael Steele, I'd think.

And even the more academic Thomas Sowell has swallowed the dishonest form or argumentation of the Republican party but given what there is to wirk with, I guess it's understandable if not forgivable).

YMMV, of course.

Cheers,
 

Arne, I can't give Clarence Thomas an IQ test. But I can look at his work product. And his work product not only shows considerable craft (more than one would expect simply from law clerks), but also the mind of an independent thinker. For instance, his dissent in Kelo was quite persuasive, and drew on his own experience in understanding the threat that eminent domain posed to minority homeowners. And his dissent in the recent FDA preemption drug case in no way resembles a Federalist Society brief, but rather his own suspicions about the use of federal powers impinge on the traditional state domain of tort law.

Justice Thomas is way too far to the right for my taste. But Bart's right that the attacks on his intelligence are a form of liberal hypocrisy-- he's smart, and the claim that he isn't is based on a sort of assumption that he is an affirmative action hire. The problem with Bart is he doesn't recognize these same elements in conservative attacks on Sotomayor.
 

Dilan:

So you think that maybe he just conveniently "forgot" the rationale there in BSA v. Dale, eh? Or a bad night's sleep? Perhaps. But I find it disturbing the extent to which RWers either "forget" or ignore things that are not convenient.

I will agree that he's probably of above average intelligence. But not the sharpest tool in the shed. And afflicted with an institutional blindness as well ... an affliction shared by some of our friends here (there's a bit more to "intelligence" than Spearman's "g").

Cheers,
 

Dahlia Lithwick at Slate doesn't like the use of "Thomas is dumb" either.

Since many of us think the opposition here is lame, cheap shots really only helps the other side, right?
 

Dilan & Arne, two of my Balkin faves...

Intelligence is complex. People have blind spots in otherwise capable minds--all of us do. It's an oversimplification but problems in our emotions often severely distort our powers of observation. So a person can be quite intelligent in many fields of knowledge and yet still, by virtue of an emotional attachment to a set of ideas, for example, be an idiot when it comes to particular fields of discussion. (This isn't anything you two aren't aware of but I just thought I'd get on the 'screen' so to speak.)
 

mattski:

That's pretty much what I was alluding to in my last paragraph.

Cheers,
 

Some people go to priests, others to poetry, I to my friends.
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