Sonia Sotomayor and the Politics of Race
Kevin Drum notes that he’s already tired of the “kabuki” that has emerged in reaction to the nomination of Sonia Sotomayor to the Supreme Court.
I both agree that the process is predictable and tedious and that Sotomayor would seem obviously qualified for confirmation. I would quibble, however, with this:
Conservatives, who seem constitutionally unable of viewing any non-white nominee as anything other than identity politics run wild, have already decided she’s just a crass affirmative action hire. Out of a decade-long appelate court career, the only opinion of hers they seem to have heard of, or care about, is Ricci. And unlike all the middle class white guys on the court, who are apparently paragons of race-blind rationality, they’re convinced that she’s just naturally going to be incapable of judging any case before her as anything other than a woman and a Hispanic.
First, that she’s Hispanic and female were undeniably major factors in elevating her to the top of the short list.
Second, liberals/progressives are cheering the First Hispanic Justice angle, with Chuck Schumer openly daring Republicans to oppose the First Hispanic Justice and risk backlash from the fastest growing voting demographic.
Third, while I don’t recall any such controversy with Sandra Day O’Connor (who, frankly, was not particularly well qualified) it was widely assumed and continues to be argued to this day that Clarence Thomas (who was objectively qualified for the Court) was a token hire.
Fourth, Sotomayor has issued public statements that, while arguably true, are racially inflammatory and that would be much more controversial still if uttered by a white judge nominated for the Supreme Court. I just happen to agree with Daniel Larison that the solution to this double standard is to quit applying it to whites rather than start applying it to non-whites.
Fifth, it’s hard to stop the kabuki once it starts. Its modern incarnation began with Robert Bork, an obviously brilliant but undeniably controversial and arguably kooky appointment. It quickly became standardized and applied to all but the most tepid appointments. It took months to confirm John Roberts and Samuel Alito, despite their stellar qualifications and moderate temperaments.
Sixth and finally, while tedious and absurd when faced with an obviously qualified appointment who will no doubt be confirmed in the end, there has been a realization in recent years of just how important these appointments are. Supreme Court justices stay on the bench years, even decades, after the presidents who appointed them leave office and decide the most portentious political issues. I would prefer that the scrutiny be more sober and less theatrical but scrutiny itself is quite warranted.
UPDATE: Matt Yglesias chimes in:
And then there’s Ramesh Ponnuru who dubs her Obama’s Miers. Because, I guess, the qualifications Sotomayor holds only count as qualifications if you’re a white dude.
Now, I think Sotomayor looks qualified (I frankly don’t follow the lower courts enough to have a well-formed opinion) and earned plenty of ire from my side of the aisle for arguing Miers was not. But I’m getting really tired of diplomas earned in ones 20s being cited as evidence that middle-aged people are/are not worthy of some senior position. Surely, there are people who graduated SMU’s fine law school who are smart enough to serve on the Supreme Court. Just as surely, there are people who Peter Principled once on an appellate court. And, while I don’t think Miers by any means distinguished herself in the role, the list of White House Counsels includes some damned smart lawyers. Why, many of them went to Harvard and Yale!
Have credentials suddenly become the sole consideration in approving Supreme Court appointments? For the last 20 years both judicial temperament and judicial philosophy have been seen to be fair game for consideration so I doubt we’ll see credentials alone being considered now.
My recollection is that Nixon really began pushing the idea of elite credentials (including ABA support) as a means of defusing liberal critics of picks that were more idealogically driven than a Democratic Congress could accept. Before then, there was a larger selection of cronies and political pay-outs in the mix of appointments.
“obviously qualified”?
Forgive me James, but 60% of her opinions that came before the high court were overtruned. On what basis is one UNqualified?
Please provide (a) a source for this statistic and (b) a relevant comparison of this statistic to other Supreme Court Justices who served as Appellate Judges prior to serving.
Eric,
It’s 50%, 3/6, and it seems like Court observers consider having 50% of one’s rulings upheld is a good percentage. In terms of her whole appellate body of work, just .8% of her rulings have been overturned. The Supreme Court, since the 2004 term, has reversed about 75% of the cases it’s heard, so it seems like having 50% of one’s rulings overturned is better than the mean.
While responding to you, would you care to discuss your referring to Judge Sotomayor as a “spic chic” [sic] on your sewer of a blog?
About a month ago, one of the posters at the Volokh Conspiracy cited something of a quantitative analysis of the number and impact of Sotomayor’s appellate court rulings, and then compared that to recent Justices. They found her opinions to be, IIRC, less impactful than Chief Justice Roberts’ and more than Justice Alito’s.
Linky
Thomas was qualified? By all accounts the guy is thick as a whale omelet. Scalia is a ^%$# but at least he’s got brain power. Thomas is just an embarrassment. He serve a whole one year as a judge before being nominated for the high court. Before that he was Reagan’s chair of the EEOC, a position where he was pretty miserably ineffective (since he doesn’t, you know, support the government assuring equal rights…).
SCOUUSblog has the answers. Alito and Roberts each took about 75 days to be approved once they were submitted (cannot recall why Alito’s went a month without being submitted).
What racially inflammatory remarks are you referring to above? If you are referring to the comment taken out of context from her speech, I would suggest you read the whole speech. Single sentences taken out of context often sound racist. That is what the left does a lot to right wing pols. Disingenuous by both sides.
Graduating from the top law schools, and finishing at the top of those law schools, is mostly a matter of signaling. It says that person was willing to work hard enough and was smart enough to be at the top. For all we know the best lawyer in the world graduated from SMU. That person will just have a harder time making that known. After all, there is a lot of subjectivity in the assessment.
Steve
http://www.americanthinker.com/blog/2009/05/sotomayor_overturned_60_of_the.html
http://washingtontimes.com/news/2009/may/27/60-reversal-of-sotomayor-rulings-gives-fodder-to-f/
http://www.freerepublic.com/focus/news/2258881/posts
http://lucianne.com/thread/?artnum=472514
That last is interesting, it adds that her record will soon be 67% overtured.
http://beltwayblips.dailyradar.com/story/where_policy_is_made_sotomayor_s_court_comment/
Would you care to read it again, this time getting the attribution correct?
As for the rest, had you bothered to read further, you’d have noticed that the charge of reverse racism was being laid. Odd, the response seems to make serious note of the suppsoed slur, but never seems to notice the overt racism involved in her comments. The leftloons walk into the teeth of their own double standards every damned time. The high road on racism is kinda hard to maintain when you’re up to your pipicks in your own racism, Rick.
Okay, so all of those sources repeat “60%” without actually referencing how many cases sent up and how many overturned so I can check their math. Do you have that?
Also, please provide a source that shows the percentages that other Supreme Court Justices were overturned when they were Appellate Justices so that we can make a more informed judgement.
Before everyone gets whatever, why don’t we all go over to SCOTUS blog and read, Judge Sotomayor’s Appellate Opinions in Civil Cases. The authors say:
Forgot to add: The authors will be publishing a similar summary of Sotomayor’s opinions in criminal cases.
Well, The Lucianne link shows it, as does the WaTi link. I’ll quote the latter:
On the 60% reversal rate, what is striking to me is the denominator, not the numerator. She only had five opinions reviewed by the SCOTUS in 11 years. That suggests that the decisions were frequently, not perceived as important enough to review. No doubt lack of seniority is a large part of that.
The denonominator (three reversals of 380 opinions) seems trivial.
Oh, and in case Bit can’t find his way over there, the authors say:
More to the point, the denominator should be the total number of opinions she wrote, not just those that were selected for review. How many did she write?
Eric,
Re-reading your linked blog post, a writer named DavidL is the author. Fair enough, you merely tolerate racial slurs (free speech! fighting the PC police!) on your blog and the site you (florack.us) maintain.
That same brave author also doesn’t shy away from the n-bomb. Classy.
Bit’s Washington Times piece claims that Sotomayor had 3/5 cases overturned, SCOTUSblog and Slate.com have the figure at 3/6. Either way, it’s better than the mean, but this minor factual discrepancy should be easy to remedy.
There again, Rick, it got used only in the context of a discussion of discrimination. And once again, you fall victim to the double stndards of the left… which is the point. Perhaps it’s time you asked yourself; Why are you angry about one, tounge in cheek discimination, but not the real kind?
Yeah, that’s what I was trying to get at.
380 majority opinions according to the Washington Times.
At Sam’s invitation, I’ve taken to look closely at one of the reversed opinions, Riverside, an environmental case.
What stands out is that although the Bush administration lost that case before Sotomayor, it urged the SCOTUS not to review the erroneous decision because the case wasn’t that important. (It was important enough to the utility being regulated, who successfully persisted in obtaining a 6-3 reversal)
Bits friend david also wrote a “barack obama house ni__er” post that bit published. When called on it bit predictably hid behind davids skirts.
Eric,
Do you have the reversal rates for other Supreme Court Justices from when they were Appellate Judges?
Also, 3/380 opinions overturned is 0.8%.
If you’re going to make the case that the rate of overturned rulings isn’t abnormal, then that seems to me your case to make, not mine.
I’ll be interested to see what you come up with.
That said, I note nobody else has used that argument previously. One logical possibility for it not having been used is that it’s a fairly heavy research row. The other is that it doesn’t reinforce the argument of her competance.
Either way, I’ll be interested to see your research on the matter.
Eric,
You claimed that she’s unqualified because of her reversal rate. If that’s the case, you must have, as your premise, that her reversal rate is abnormal. Accordingly, the burden of proof is on you to provide evidence that her reversal rate is abnormally high. Otherwise, you have not proved the case that she is unqualified because of her reversal rate.
tlaloc;
I can only assume that “^%$# t ” would be interpreted as meaning…
“The smartest man on the court with the best understanding of the U.S. Constitution”
Plebeian Dictatorship
Correct, that’s my argument. If you’re going to argue that the reversal rate is irrelvant due to other factors, fine. List them.
I will however point out that the Democrat don’t seem to have a problem with using the argument I’ve made, against a Republican appointee. Take for example, the case of Judge Terrence Boyle who was appointed to serve as a federal appellate judge on the United States Court of Appeals for the Fourth Circuit, back in ’06.
Despite having a record of overturning below the average for district court judges, around 7%…. The national rate at that level is a little under 9%) the left tried using the ‘high percentage of overturn’ argument against him.
I note the same argument was tried against Justice Alito, too.
@Bit
In this story, Supreme Court justices have already acted on some Alito decisions, I count three reversals of Alito by SCOTUS. The article does not say how many opinions from the 3d (Alito’s) circuit have found their way to SCOTUS, but it does say:
Well, yeah. And the differences in structure between the 9th and the rest make for some apples- and- oranges comparisons. To that point, happily, I happen to have an old “Law and society review” article from 2006 open at the moment, due to some other research I’ve been doing for an article elsewhere.
Personally, I’d be interested in how many opinions she sided with the minority, thereby making the wrong choice, but not being over-ruled. It amazes me nobody else has brought that one up.
I for one usually avoid quoting Larison, for he has the distressing tendency of thinking before he places his pixels in the ether, and as such, his writing tends to the convoluted. Despite his perch on the American Conservative, his writings are thought provoking. He certainly does not walks lock step with the latest talking points put out by the RNC, or that he goose-steps in synchrony with the mavens of the Cato or American Enterprise Institutes.
That said, I can find little or no support in the link you gave that Larison agrees with this:
He does mention a double standard, but to my mind, he views the current controversy as a rather weak straw man. Perhaps two snips from post will direct your irregulars to read brother Daniels whole post:
As to Sister Sonya’s reversal rate, I will throw my weight behind brother Alex, rather than my very distant cousin Eric (AKA Bithead). In the reversal data mix one has to throw in the question as to when. If the reversal includes some of the dreadful 5 to 4 decisions so common in Chief Judge Roberts tenure, then it certainly would be considered by most rational people a plus in her favor.
And now, Andre, the sword…
Bit, what are you going on about the 9th for? Judge Sotomayor sits on the 2d. Don’t tell us, please, that you’ve been pumping out all this stuff because you think she is sitting on the 9th Circuit…really? Jesus.
Well, this ought to put paid to the “reversal rate” argument:
What Should a Judge’s Reversal Rate Be?
Read the rest of it.
I have read the entire context thanks to Grewgills.
The comment can be looked at in two parts:
1. That people with different backgrounds will arrive at different decisions/conclusions.
2. That people with certain backgrounds will be arrive at better decisions/conclusions.
Part 1 is trivially obvious given just a few seconds thought. Number 2 isn’t neccessarily that bad either if we consider that yeah, an engineer from a great school, with lots of practical experience and such will likely make good engineering decisions and conclusions.
The problem is that Sotomayor invoked race and ethnicity in making her comment. That is to reduce it to its most crude form, she hopes that a brown woman would make better decisions than a whit man. Frankly, in certain situations I imagine the brown woman would make shitty decisions. Why? Because she is brown and a woman. In others the white man would make shitty decisions. Why? Because he is white and a man. Which is going to be better on the whole? As Alex Knapp says provide some frigging statistics on people’s ethnicity, race, gender and their deicisions and how they turned out.
I find it a troubling assertion. Some white males may think the same way and I still find it a troubling thing. Why? Because it suggests that merely being brown and a woman (hopefully) gives such people a greater insight to the TruthTM than those of us who are not women and not brown.
Paul: I wrote,
The fact of the matter is that any statement issued by a public official to the effect that race and ethnicity matter at all puts them on dangerous grounds, forced to defend themselves against charges of racism. I side with Larison in thinking that a bad thing.
He does mention a double standard, but to my mind, he views the current controversy as a rather weak straw man. Perhaps two snips from post will direct your irregulars to read brother Daniels whole post:
I don’t really expect conservatives to approve of Sotomayor, or for that matter anyone Obama might nominate. But I’d make one fairly narrow point: procedurally, there’s no way to distinguish between her nomination and Alito’s (given, as Yglesias pointed out, their nearly identical resumes). Specifically, if you didn’t think a filibuster was justified in the one case (that means you, Gang of 14), you can’t possibly justify the use of it now.
Oh, I know that, of course. But I bring all that up, because the Ninth is the most overtruned district on an order of scale, and their style of dealing with things vs that of other circuits beings up the whole idea that the rate of overturn has as much to do with the circuit court the individual judge is on as it does the individual.
That ties in with the last line of that comment rather neatly. You see, I wonder if her error rate wasn’t quite a bit higher, or lower… than the ultimate overturn rate would suggest. I thought the implication there somewhat more clear than it apparently was.
@ Paul
So, am I to read in this that you place more weight on your agreement with the ruling than you do the other judges agreement? It’s an interesting argument, certainly.
Now, so far as I know, both are fine picks given the context of who was doing the picking. But the fact that the both went to the same schools and served on appellate courts does not necessarily make them equally qualified. One could have sucked on the appeals court. One could be a temperamental jackass.
(nod) Exactly so.
Unlike some others around here…
Not really what I had in mind, but if it floats your boat. Personally I find Scalia’s pretenses of originalism (when it suits him) to be transparently hypocritical and even cowardly.
And for the record I think Alex Knapp is absolutely right that we shouldn’t look at just the reversal rate of decisions that went to the SCOTUS. After all, it appears very few went there. This would suggest that the vast majority of her decisions were good enough to not warrant further review. Hence looking at just one statistic is going to give a skewed measure.
Eric,
Okay, you lost me. Are you saying that Alito was unqualified?
One could have sucked on the appeals court. One could be a temperamental jackass.
I was assuming that the vetting/oppo research process that has, in the weeks since Souter announced his retirement and Sotomayor was widely shortlisted as his replacement, produced no evidence of either (again just as before with Alito) would continue to come up empty. If some sort of Anita Hill type of bombshell drops wrt Sotomayor, then all bets would be off.
Absent such a development, those that thought it was wrong for Alito to be denied an up-or-down vote, that he shouldn’t have to meet a supermajority requirement, have (at least according to information now publicly available) no basis for denying Sotomayor the same treatment.
Brief recap of the Gang of 14: it was 7 Dems and 7 Repubs, who agreed to vote for cloture in exchange for the Senate Repubs (led by Dick Cheney) taking the nuclear option (to declare a filibuster “out of order”, by simple majority, for judicial nominees) off the table.
There is simply (again, judging by publicly-available information and barring a bombshell) no basis for those 7 Republicans of the Gang of 14 not to extend the same courtesy to Sotomayor. If those seven are unwilling to vote for cloture, then they are unprincipled, advancing a Republican agenda on a “moderate” front, in which case the “nuclear option” freely bruited by Cheney & company would be a perfectly reasonable response (I would finally note that the extreme unlikelihood of it ever coming to this is probably what Kevin Drum is referring to with his ‘kabuki’ remark).
Largely right in this case, although vetting can be sloppy. There have been reports that Sotomayor does not play well with others, although nothing that I think would sway many votes that weren’t likely against her to begin with.
Bwahahahahahaha….oh my…hahahahahah….heh…yeah…
Well you see the problem with this is, mmmmkkk…bwahahahahahaha….
No. You got lost because you’re busy reading your own roadsigns.
I’m merely saying that the argument was used by Democrats when a right-leaning judge was nominated, as with Judge Boyle as I cited.,. and that he wasn’t qualified was certainly the thrust of their argument. I’ll leave it to your own investigation as to the argument being valid in each of those cases, or not. Either way, the argument is not new, nor I think, can it be conisdered invalid based on some of the numbers being tossed around.
As an aside, I am curious; what would your opinion of Justice Alito be, in terms of fitness for the USSC?
Eric,
Let me ask you a question: if it turns out that Alito had a 50% reversal rate or higher, would that make him unqualified, under your definition?
As for Alito, I opposed his nomination because I found him to be altogether too deferential to the executive and the legislature at the expense of the Constitution. History has borne that out.
Having read through many of Sotomayor’s opinions so far, I’d say my issues with her are similar. She’s too deferential to the legislature. (I haven’t read any significant executive power decisions of hers yet to judge).
But, you know, if I were a judicial conservative, I would adore Sotomayor, because from what I’ve said so far, she bends over backwards to not strike down laws or overturn precedent.
I just don’t think that’s a a good trait for a Supreme Court Justice, which is why I don’t care for Alito, Roberts, Breyer, or Ginsburg.
I’m happy to jump in on this. I felt that then-Judge Alito was more than fit for the position of Associate Justice. He met all the (admittedly few) Constitutional requirements, and I feel firmly that presidents are generally entitled to significant deference in their appointments.
I disliked Alito for his ruling where he equated women and children to property. That kind of rubbed me the wrong way, personally.
I was fine with Roberts.
sam’s link to Concurring Opinions indicates that the SCOTUS typically reverses 60-75% of the cases it hears.
I’ll give the new conventional wisdom a push: she is merely average.
Earlier, I commented that I was surprised at the few number of her majority opinions reviewed by the SCOTUS. I take that back:
According to stats available at the SCOTUS blog, the SCOTUS has typically reviewed about 5.25 decisions from the Second Circuit each year. (2004 = 2; 2005 = 7; 2006 = 5; 2007 = 7) Assuming an average of 5.25 decisions over Sotomayor’s 11 years at the Circuit Court, there would have been 58 decisions reviewed that were penned by one of 12 active judges on the Second Circuit. Thus, one would expect a judge to have about five decisions reviewed over the course of eleven years.
Thanks to those who dug them out for the numbers.
It seems clear now that she was not reviewed more or less often than her peers in the 2nd and that she has been reversed at the same or slightly lesser rate than is typical. Further, of those 3 reversals the judge she is replacing agreed with her argument twice.
The 60% reversal line of attack is pretty weak tea.
BS. Following is the entire article (sans the blockquoted portions)
Not one thing about reverse racism in the whole post. We are again treated to Bit’s incapability of admitting fault in the face of overwhelming evidence.
So, let’s see here, Grew.
A bunch of quotes about how she’s unqualified.
On what basis might someone think she was qualified?
What is it you suppose remains?
Because he was looking for someone of a particular race and gender.
That’s racism, and sexism, Grew. Plain and simple.
Now, need anything else explained to you?
Explain exactly how the post is made stronger or more persuasive by using the term “spic chic”. Absent that and without any other overriding reason for its use, it seems stuck in merely for shock value and/or so this person has an excuse to fling epithets like a monkey flings dung.
Would my argument be made stronger or more persuasive if I called DavidL a cracker. That would of course be in support of my charge of reverse reverse racism*.
There was at least a very weak defense for this poster using the term “house nigger” when referring to Obama. Now with this post there appears to be (one of your favorites) a pattern forming.
2 = a bunch? One quote expresses mixed opinions and the other one, from a far right ideologue, considers both her and the one she is replacing mediocre. Neither states she is unqualified.
As has been pointed out she has the same qualifications on paper as Alito, though with less of her opinions reversed by the supreme court. Alito had at least 4 decisions reversed by the supreme court and more overturned by lower courts.
By that logic, Reagan was a sexist for choosing O’Connor and GHWB was a racist for choosing Thomas. Was Reagan a sexist? Was GHWB a racist?
* ie racism
Simple; If that reference angers you and the overt racism of the candidate herself and that of Obama doesn’t, where are you? You’re certainly not on the racism high road that most leftists like to claim for themselves.
Ohhh, I see…so it’s ok to use a racist term to describe someone if the point is to smoke out other people’s support for that person(who is supposedly a “racist”)…wow, there’s some sterling logic there…how, exactly, are the president and his nominee “racists”? These lines of attack against Sotomayor are desperate, disingenuous, and pathetic…such a pity that none of them have the slightest chance of working…
I would call it a draw James (May 27, 2009 | 01:15 pm). You can use bro Daniel’s essay to justify that folks in the public eye should not mention their ethnicity for fear that it may be “racially inflammatoryâ€. I, in turn, will use bro Daniel’s quotes in my above post (May 27, 2009 | 12:40 pm) to argue that Judge Sonia Sotomayor comments are being quoted out of context, and only to raise and solidify the issue of her being a racist.
But hey mon, you have some major luminaries on your side. Newt has joined Rush (AKA the Conscience of the GOP) in blasting Sister Sonia as a racist. And of course, the barking dogs are at it 24/7.
The question begs exploration: Is this the way to attract the educated class, or those under 30, or the female voters to your banner? Those, by every available pole have gone to the Independent or Democratic camp. Who then, for God’s sake, are you trying to attract to you cause?
It really boils down to this question: Are you an advocate, or an apologist for the strains that permeate the Libertarian / Conservative / Republican Party? Newt, Rush, and others are clearly advocates. Daniel Larison, and very few others, are apologists.
I think it was Julius Caesar the once said to Mark Anthony: If you do not have enough troops that believe in what you say, you can kiss you’re a*s good by…
Bit. Look dude you are a fascist/racist.
Quit whining. Man up and fees up…
We can jawbone this all night, but the point is pretty much moot. No one outside of the “world is flat” crowd doubts that she is qualified. From Obamas perspective it is simple. We can have a timely confirmation or we can have a fight. Obama has kicked the GOPs ass before and he is prepared to do it again.
Wow, that is quite the rationalization. Now you can call Obama and any of his appointees any bigoted name you choose because you have built such an ironclad defense for yourself. You and DavidL aren’t really racist, your just trying to smoke out the real racists.
Not at all. Look closely at your own spittle filled comments as well as those from WhiskeyFire, and you’ll notice it worked rather well. The comment drew liberloons like wolfs to a sheep…. so busy were they expressing their high moral outrage they not a one of them noticed the people they were defending were ACTUAL racists. Group politics is racism/sexism, Grew. If you can’t bring yourself to understand that salient point, I don’t expect you to have the wit to understand the rest of it either. But I consdier the point well made to those with the brains to see it.
Bit,
Again I ask, was Reagan a sexist?
Was GHWB a racist?
As DavidL said this very morning:
A racist is any person who makes an assumption based on race. Period. Full stop.
So, the question becomes, how is it you watse so much good spit on David’s original comment, while ignoring the overt racist attitude Sotomayor exhibts? Do you not see the double standard you’re employing?
Bit,
Why do you keep dodging the question?
Were Reagan and Bush 41 sexist and racist respectively?
Use the same standard that you use for Democrats.
That definition needs some work.
Webster defines racism as,
See how that is much less hazy and doesn’t include such innocuous things as, I assume, even before seeing them, that an african american will be darker skinned than I am. Does that assumption make me racist? According to DavidL’s definition, yes. In fact DavidL’s definition makes everyone a racist.
I honestly don’t know if you or DavidL are racists. I do know that if I hold you to the same standards that you hold your political opponents to (a tactic I am borrowing from you) then you are both racists. Do you not see the double standard you’re employing?
That is a lie…the only “proof” you have to back up that statement is a partial quote of hers that was taken completely out of context…try again…