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Saturday, May 30, 2009

Racial preferences and Judge Sotomayor 


Megan McArdle has a nice post on the relative irrelevance of affirmative action against the many other weighty issues that come before the Supreme Court, with a dancing plethora of interesting comments in response and elaboration.

For my own part, my first-draft opinion of the Sotomomayor nomination includes at least the following elements:


  • She is eminently qualified, and would be well within the standard for the Supreme Court if she were a middle-aged white male. Her opponents would do well to avoid the claim that she has been cut some break because of her ethnicity, if for no other reason than it will diminish the power of that argument on some future occasion when it might actually apply.


  • It is troubling that she might subscribe to the idea that one's race or ethnicity makes one inherently more capable of understanding racial issues, even if it might be true. Judges need to maintain the appearance of impropriety, and that is manifestly an improper attitude, akin to saying "most people are guilty of something" and the like. Candor is not an asset in a judge, particularly one nominated for the Supreme Court.


  • Republicans are certainly entitled, both procedurally and morally, to vote against Sotomayor's nomination on exactly the same basis that Senator Barack Obama voted against the confirmation of Justice Alito and Chief Justice Roberts. That does not make it any less risky for them to do so.


  • The Ann nails it:
    [T]he media and Democrats seem to find successful Hispanic attorney Sotomayor much more "empathetic" than successful Hispanic attorney Miguel Estrada.

    After aggressively blocking Estrada's nomination to a federal appeals court during Bush's first term solely on the grounds that he is Hispanic and was likely headed for the Supreme Court -- according to Senate Democrat staff memos -- now Democrats have the audacity to rave that Sotomayor will be the first Hispanic Supreme Court justice!

    If Sotomayor is not more empathetic than Estrada, liberals at least consider her more Hispanic -- an interesting conclusion inasmuch as Sotomayor was born in New York and Estrada was born in Honduras.

    Forty-four of 48 Senate Democrats voted to filibuster Estrada's nomination to the D.C. Circuit Court of Appeals, with congressman and professional Hispanic Raul Grijalva assuring them that just because "he happens to be named 'Estrada' does not give him a free ride."

  • Quiz her respectfully but relentlessly, stay away from the suggestion that she is less than fully qualified, and then vote to confirm her because she is going to get confirmed anyway.

    CWCID: Glenn Reynolds.

    27 Comments:

    By Blogger SR, at Sat May 30, 09:10:00 AM:

    She may have gotten into Princeton on an AA exception (even though she excelled at a parochial high school in NYC against presumably stiff competition), but after graduating Summa from Princeton (are there any easy majors there? I doubt it was in engineering) it would seem that affirmative action ceases to apply. I hear all the time about the struggles she had growing up. I really don't see it.
    Compared with Estrada she had a pretty free ride.  

    By Anonymous feeblemind, at Sat May 30, 09:24:00 AM:

    Paul at Powerline disagrees, comparing her nomination to Harriet Miers. He closes his post with, 'If you believe in upholding the Constitution, stand up against an unqualified nominee now just as we did in 2005. The results might surprise you.'  

    By Blogger Viking Kaj, at Sat May 30, 09:38:00 AM:

    I say let her go through. The dems may have miscalulated here.

    She is:

    1) A practising Roman Catholic.

    2) A former DA.

    Of the four catholic justices on the court now only one, Kennedy, supports Roe, and he is not in favor of state supports abortion.

    As a former DA, I wouldn't expect that she will be easy on crime, which forms an inordinately large part of the average supreme court docket.

    I'm not saying she's a conservative, but I wouldn't expect a bleeding heart from the Daley machine either.  

    By Blogger K. Pablo, at Sat May 30, 09:40:00 AM:

    "appearance of impropriety"??  

    By Blogger Kinuachdrach, at Sat May 30, 09:58:00 AM:

    "then vote to confirm her because she is going to get confirmed anyway."

    Rather like the advice to the woman being raped that, since it is inevitable, she might as well lie back & enjoy it. And just as reprehensible!

    This is an individual who has made racist & sexist remarks. If she were a white male, she would be gone already. If Senators fail to explore her statements very thoroughly before deciding their votes, then they will have endorsed sexism & racism.  

    By Blogger Dawnfire82, at Sat May 30, 10:55:00 AM:

    "then they will have endorsed sexism & racism."

    And this surprises you?  

    By Anonymous Mr. Ed, at Sat May 30, 11:02:00 AM:

    It's Paul at Powerline that nails it.

    If conservatives want warm coffee at the back of the bus for the next 20 years, thinking one thing and voting another is a good way to ensure it.

    If Republicans can't muster anything more imaginative than go along to get along, then they are toast in 2010. They need to differentiate their vision of America from that of the Democrats clearly and constantly. I agree there is no need to show disdain or disrespect for Sotomayor herself. But ideas and philosophy matter. If Republicans are too embarrassed to stand up for what they believe in, there is no hope for them. A tip of the hat to those with the needed courage.

    M.E.  

    By Anonymous Anonymous, at Sat May 30, 11:03:00 AM:

    Sotomayor will be nominated -- only question is how will the Republicans handle the process.

    Obama could have made a worse pick ... and may do so next time. I thought he would pick Kathleen Sullivan out of left field this time -- and he may next time. With Obama, it has to be a "first": first lesbian, first Hispanic, etc ...

    Republicans should hit Sotomayor on principle, score some points and move on. There's a real danger that Republicans will make it personal and ugly, and get hurt in the bigger scheme,

    1) Sotomayor's not an affirmative action hire ... face it -- Clarence Thomas was, although I now rank him higher than Scalia -- who's actually an apologist for big government.

    2) If all you've got is a few unscripted comments on Sotomayor ... you've got nothing.

    3) She's not "off the plantation" in any judicial decision I know of -- in New Haven Firefighters and Portchester Land Seizure she had two others voting with her -- unfortunate, but true. I haven't studied her opinions -- many others will do that for me -- but I suspect she'd be in the middle of the pack of the Ninth Circuit, sadly.

    For all you law school nerds, she's "legal realist" ... Obama could have gone radical with "critical legal studies" ... guys like Scalia say they're "legal formalists", but only when convenient -- which is why I hate the hypocritical bastard. Scalia proves that "legal realist" theory is correct ... judges are politicians in robes. Clarence Thomas may be the Last of the Mohican formalists -- they don't breed in captivity.

    Sidebar: I suspect Obama subscribes to "critical legal studies" ... which is why he scares me so much. If we had any real reporters in America they'd have probed Obama's hanging around with the likes of Roberto Unger at Harvard Law ... but they couldn't even handle Tony Rezko as a lede.

    4) In her personal life, she's everything that Republicans say they stand for -- hard working, gritty, determined, self-made. A generation ago she would have been a nun.
    We have a Republican party that's too white, too male, too Protestant, too non-urban ... either born too rich ... or too redneck. Nothing Obama does is without purpose. Why do you think he picked Sotomayor instead of a Kathleen Sullivan? ... It's a trap.

    5) I'm with Viking Kaj ... Sotomayor may surprise ... many Hispanics have a conservative bent, few blacks do ... I don't expect her to overturn Roe -- but I don't expect that from Roberts either (Alito maybe) ... Catholics all. She was a prosecutor for many years ... she knew the same Bronx of the 1970s I did -- so I doubt she's a bleeding heart on everything. She would have grown up with innocent neighbors that were robbed, raped and shot -- she may be liberal, but not limousine liberal. I'd go so far as to bet that in ten years people of the left will say she was Obama's Souter.

    6) Elections matter. The Republicans have been losing so badly they don't even have a seat at the Sotomayor table ... they're at the kids table. Picture Rush and Cheney wearing little party hats ...

    7) I'm surprised there hasn't been more Tiger pride here in her getting picked ... did I miss it? ... it's as if she went to a different college.

    Link, over  

    By Anonymous Anonymous, at Sat May 30, 11:34:00 AM:

    Link again,

    Here's some inside baseball ... from da Bronx. Sonia went to Cardinal Spellman ... and had to pay tuition ... when she probably could have gone to Bronx Science for free. Catholic schools kept tuition low, but it would still have been a sacrifice for a single working mom. That tells me her mom was a real Catholic. Real Catholics didn't send their daughters to Bronx Science in the 1970s ... their sons, maybe. So how Catholic is Sonia? NARAL and Planned Parenthood should be worried.

    Spellman in the 1970s was probably the best Catholic school run by the NY archdiocese. The Jesuits had their elite boys-only academies, and there were small schools for rich girls in Manhattan. But Spellman was a new school built in the north Bronx, intended to draw from Westchester ... not just the Bronx. It was the hardest "regular army" Catholic school to get into at the time. And Sonia was valedictorian.

    It doesn't look like Sonia ever needed an affirmative action break, nor ever got one. So enough with the condescension.  

    By Anonymous marybel, at Sat May 30, 11:40:00 AM:

    Racism, AA....mere "distractions."

    The bigger issue being overlooked by many worrying about Sotomayor is her Obamaish interpretation of the Second Amendment.

    Obama is only "for" gun rights insofar as he is as yet unable to garner the legal support to outright ban them. Sotomayor is going to the Supremes to do Obie's bidding.  

    By Anonymous Burr Deming, at Sat May 30, 11:47:00 AM:

    In fairness, we should consider the arguments against the judge.  

    By Anonymous marybel, at Sat May 30, 11:49:00 AM:

    "...Catholic schools kept tuition low, but it would still have been a sacrifice for a single working mom. That tells me her mom was a real Catholic. Real Catholics didn't send their daughters to Bronx Science in the 1970s ... their sons, maybe. So how Catholic is Sonia? NARAL and Planned Parenthood should be worried."
    - Link

    I think Sotomayor's mom was likely remarried by HS, which speaks well of her mom's wisdom and vision for her daughter.

    As for Sotomayor being a worry to NARAL and PP, I hope you are correct.  

    By Anonymous Anonymous, at Sat May 30, 12:01:00 PM:

    Link again,

    Obama is on record as saying that the courts aren't effective enough at making progressive change happen -- he's said that organizing to take over City Hall is what matters. Normally a Supreme Court pick is a big deal for a President ... but it pales next to what Obama's been doing over the last few months -- he's already taken over City Hall.

    Obman could have picked a more leftist nominee ... but why go there if you don't need to.  

    By Blogger kreiz1, at Sat May 30, 12:03:00 PM:

    TH- appearance of impropriety is an excellent point. IMO, this isn't enough to derail Sotomayor, but professionally, it's troubling.

    I'm in Old School agreement with Anon's 6th point- politics prevails here. By virtue of his victory, the President should be given deference in his selection, barring incompetence (Miers) or worse. By virtue of her substantial experience (as opposed to her 'compelling personal story'), Sotomayor is a qualified jurist. Elections have consequences. Get over it.

    Last, searching for principled consistency is futile. Sotomayor's compelling personal narrative is no more impressive than Clarence Thomas's. And we saw the respect that it garnered from Dems.  

    By Anonymous marybel, at Sat May 30, 12:05:00 PM:

    Checked it out and Sotomayor's mom was remarried in the early 1990's, so Celina was indeed a single mother the whole time Sonia was being schooled. Good for her. No wonder her daughter sings her praises.

    That straightened out for the record, I still worry about Sotomayor.  

    By Anonymous Roy Mustang, at Sat May 30, 01:27:00 PM:

    "I say let her go through. The dems may have miscalulated here.

    She is:

    1) A practising Roman Catholic.

    2) A former DA."


    Hell no. I don't give a damn if her rulings are pro-life or not. All it matters is that her decisions would be based on her personal whims rather than the Constitution. Judges like her need to be tried for treason.  

    By Anonymous tyree, at Sat May 30, 02:27:00 PM:

    Her support for affirmative action on the bench is what has me worried. My son lost his job in local city government for "political reasons" which is a local way of saying the city needed more Mexican immigrants in that position. Affirmative action is wrong and it does nothing to fix wrongs that were done generations ago.  

    By Anonymous Anonymous, at Sat May 30, 05:41:00 PM:

    This judge has done everything in her life according to what conservatives say they expect minorities to do to achieve equality: high school valedictorian, second in her class at Princeton and editor of the Yale Law Review.

    What is the response of even "respectable" conservatives like Fred Barnes and William Bennett? She's and affirmative action pick.

    Question her rulings, question her politics, whatever. But for crying out loud Republicans need to quit going on about affirmative action in her case. It's insulting.

    Her academic achievements surpass 99% of the white males sneering at her as a "two-fer", and it appears she earned it all very legitimately.  

    By Blogger Foxfier, formerly Sailorette, at Sat May 30, 06:05:00 PM:

    Viking Kaj-
    she's not a practicing Catholic; she self-describes as going for holidays and family obligations.

    I am amused that some folks (not here) have objected to her on the grounds that it will make 6 folks born Catholic on the USSC. (Plus two Jewish folks-- no idea if that's birth or practice, though)  

    By Anonymous tyree, at Sat May 30, 06:07:00 PM:

    Anonymous - You are right.

    However, if race and gender based set asides did not exist, no one would be able to bring them up as an issue now, would they?

    Affirmative action was never a good idea and should have been eliminated decades ago.  

    By Anonymous WLindsayWheeler, at Sat May 30, 07:21:00 PM:

    You people are "conservatives"?

    "Conservatives" vote for a female judge?

    You are nothing but nihilists complaining about another bunch of nihilists across the isle.

    Please stop the game, stop the deceivement, stop fooling yourselves. Please. Women as judges and lawyers are progressive and socialist! The Fascist program of Mussolini called for the suffrage of women and their advancement in all fields---and you people call yourselves "conservatives"?

    Obviously, you people are really sick---sick in the head. You really don't know what "conservatism" is.

    You're nothing but socialists. And since you concur with the progressive agenda of Fascists, maybe you should call yourselves that!  

    By Blogger Foxfier, formerly Sailorette, at Sat May 30, 07:24:00 PM:

    Failtroll is fail.  

    By Blogger Viking Kaj, at Sun May 31, 11:25:00 AM:

    To Ff: Practising means baptised, confirmed and not excommunicated to me. I consider myself a practising Lutheran (the Church of Sweden) and yet, on the European model, I only attend church on the high holidays. My Mom was a Catholic, however, so I was baptised and catechised in both churches. My only further comment is that you can take people who are raised catholic out of the church, but you can't take the guilt out of the catholic.

    To R Mustang: Since I am fundamentally a libertarian, and support individual's rights to do as they please with their bodies, I hear where you are coming from. My only point is that this lady is likely to be a surprise in more ways than one for the left wing nut cases out there.  

    By Blogger Foxfier, formerly Sailorette, at Sun May 31, 11:39:00 AM:

    VK-
    Ah, so you don't have to actually practice to be practicing. Interesting definition.  

    By Anonymous Dennis Elliott, at Sun May 31, 12:34:00 PM:

    "This judge has done everything in her life according to what conservatives say they expect minorities to do to achieve equality: high school valedictorian, second in her class at Princeton and editor of the Yale Law Review."

    One more. Conservatives expect her to do it as a matter of course like all the rest of us. Meeting the standard is a common goal to the commencement of a better life, not a seat at the pinnacle.  

    By Blogger Georgfelis, at Mon Jun 01, 11:48:00 AM:

    I’m going to go with the Presidents have discretion on who they appoint argument. We knew he was not going to appoint a conservative. He could have appointed a truly radical leftist of feminist bent. This one is at least…a moderate Dem. I will still support my Republican Senator if he votes for her. Now if he tries to get somebody like Juan Cole or Laurence Tribe in next time…  

    By Anonymous Anonymous, at Mon Jun 01, 12:21:00 PM:

    Kathleen Sullivan is Larry Tribe in a skirt. She's brilliant, but very left. I'd expect someone like her will be Obama's next pick.

    Link  

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