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Much has been written, on both sides, about the nomination of Sonia Sotomayor to the United States Supreme Court. President Obama has repeatedly said that he feels the Supreme Court needs her “empathy”. Sotomayor herself has said on many occasions that “a wise Latina woman [...] would more often than not reach a better conclusion than a white male” when it comes to judging the law.
I have grave reservations about this nomination, and a few minutes ago, I realized how to distil out the central essence of why.
You see, the United States is a Constitutional republic, a nation of law, and the duty of the United States Supreme Court is to be the final judge and arbiter of the nations laws and their rectitude. It is the duty of the Supreme Court’s Justices to make their judgements as fairly, as correctly, and as objectively as they possibly can. Their responsibility is not to judge the ethnic sensitivity of the plaintiff or the hardships faced by the defendant; it is to judge the fairness, the correctness, and the Constitutional soundness of the applicable law itself. If the Supreme Court cannot be objective, it cannot properly discharge its duties and responsibilities.
Yet, our President is nominating to the United States Supreme Court a woman whose strongest and most vital qualification for the position — or so he tells us — is precisely that she is not objective.
Does anyone else see a problem with this?
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go back to the Biblical story of the two women who each claimed to be the mother of one child...
who makes the better decision, the true mother of the child who would rather the other woman have her child than the child be killed by being cut in half, or the woman who wanted to steal the child and was willing to let it die to prove her objectivity?
Is empathy such a curse, then?
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No, no human is truly objective, as you well know. You've run across your share of proof. But the job of a Supreme Court Justice is objectivity to the greatest degree possible, and the idea of nominating a Justice on the asserted grounds that she'll put empathy ahead of objectivity is a poor one.
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Compared to the 8 justices on the bench, she is unique in her background and attitudes. She is not even remotely unique in applying that background and those attitudes to jurisprudence.
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I'm not arguing that any Justice is, or can be, perfectly impartial. The problem comes when someone is nominated for a position requiring impartiality on the express grounds of partiality. It's as though I were to apply for a position as a chaplain on the strength of agnosticism.
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Did the other 8 justices explicitly state that they would use empathy rather than objective adherence to Constitutional law? Sotomayor has explicitly stated that she would not view the law objectively, so she has a burden of proof they do not face.
Compared to the 8 justices on the bench, she is unique in her background and attitudes.
How is she more "unique" than the other eight justices -- which, remember, include both women and non-whites? For that matter, why is being female or non-white a qualification for the job?
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Actually, now that I think about it, there's an interesting parallel here. Sotomayor has been criticized as racist in light of Ricci v. Stefani, the New Haven, CT firefighter promotion case in which the city decided not to promote anyone because no black candidates passed the written examination, and the nineteen candidates who did pass, eighteen white and one Hispanic, sued the city on the grounds that the decision not to promote anyone at all because they couldn't promote any black firefighters was race discrimination. Second Circuit found in favor of the city, and the case will probably go to SCOTUS, but the interesting aspect from the point of view of Prop. 8 is that Sotomayor and four other justices wrote an opinion in which they stated that precedent basically did not allow them to rule any other way.
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Unixronin has already pointed out that under the actual law, Proposition 8 had to be upheld because it was passed in the appropriate manner under the state Constitution. Any judge who had ruled against it would have been in violation of their oath of office and worthy of impeachment. That California's Constitution is easily manipulated and Proposition 8 is likely a bad idea are different issues, which the courts can not and SHOULD not decide.
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That's doubtful, and hinges on the assumption that the US Constitution originally defined blacks as nonhuman. This was Taney's working assumption, but it is not supported by the actual document. In fact you could argue that Dred Scott was an early example of an "activist judiciary" -- and coming from the same Party who supports the concept today, albiet for different ends.
... and to the recent decision in California upholding Proposition 8 as a legitimate change to the state constitution enacted by popular vote.
Of course it was "a legitimate change to the State Constitution enacted by popular vote."
A very bad idea, if you ask me, but still "legitimate." Are you saying that the California State Supreme Court should be empowered to rewrite the State Contitution by fiat? Will you still be cool with this idea when they abolish or override parts of the State Constitution with which you are sympathetic?
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You're exactly right. It is not the job of the judiciary to decide if a policy is a good idea or not. It is their job to decide if it is legal or not. We already have two branches of the government who are tasked with deciding whether or not a policy is a good idea. (and in CA, throw The People into that group...)
It isn't the CA Supreme Court's job to decide if it is a good idea to amend the CA Constitution to prohibit gay marriage, so they didn't address the issue. They only ruled that it was legal to amend the constitution to prohibit gay marriage.
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While the text may be wrong, I can't really fault the CA supremes for refusing to override the will of the voters, in the absence of any law allowing them to do so and given the precedent (their own) in place.
If they'd done the "right thing," the prop-8 backers would have immediately sued and likely won, which is a set back. The court must, after all, uphold the state constitution. Any court would not be very willing to override the popular vote, even if the voters are wrong.
Ruling the way they did, especially by letting the existing marriages stand (creating another class of "equal but not") strengthens the obvious EP challenges. I think that was deliberate -- they clearly indicate where their sympathies lie (given their previous EP ruling, and comments in this decision.)
The CA supremes correctly noted that other states don't allow their initiative process to be used to amend portions of their constitution pertaining to civil rights.
It is clear that the CA constitution is defective by permitting this...and while they're at it, it seems the bar either has to be raised on all initiatives, or they have to raise it for bond initiatives specifically, to keep the voters from repeatedly spending the state into bankruptcy.
I've said it before and I'll say it again...CA needs a constitutional convention to rip out 90% of the bs and fix these obvious defects.
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Ain't none of them "objective."
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(I also find the White House's efforts to discourage anyone from questioning her fitness for the position to be hypocritical, considering that Obama is the only President ever to have voted to filibuster a Supreme Court nomination, that of Justice Samuel Alito.)
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Why do you say that Obama "could find no stronger recommendation for her than her 'empathy'"?
I've just re-watched Obama's May 29th announcement of her appointment (you can watch it too (http://www.whitehouse.gov/blog/Weekly-Address-The-Experience-of-Judge-Sotomayor/)). The very first thing he says is that "there has not been a nominee in several generations who's brought the depth of judicial experience to this job that she offers".
He then talks about her background as a tough-on-crime Assistant DA in New York City, and as an attorney in private practice specializing in intellectual property litigation and international law. (I looked it up. She was so good at it that she made partner in four years. She also made a name for herself as a fair arbitrator, so much so that Governor Cuomo appointed her to the board of the State of New York Mortgage Agency, and Mayor Koch appointed her to the New York City Campaign Finance Board. Soon after that, she officially reprimanded Koch for not following campaign finance regulations. That's a sign of a person who is fair and impartial!)
Sotomayor's first judicial appointment was to the U.S. District Court for the Southern District of New York; she was nominated by President George H. W. Bush in 1991 and confirmed in 1992. In 1998, Clinton appointed her to the Second Federal Court of Appeals. Her 17 years on the federal bench, Obama says, is more federal judicial experience than that of any other incoming Supreme Court justice in the past 100 years.
He then points out that "her achievements are even more impressive when you consider what she had to overcome in order to achieve them". I think that that's a fair point. To make it out of the projects, a person has to be intelligent and a hard worker. Even more, they have to be dedicated to doing the right, legal thing all the time, even when it's hard, instead of easier but shady routes. Climbing out of urban poverty as she did is a sign of a strong character and extraordinary intelligence.
She graduated summa cum laude from Princeton, on a full academic scholarship. Then got her law degree at Yale, also on a full scholarship, and was one of the few top students to be appointed an editor at the Yale Law Journal.
It isn't until Obama is half-way through the speech that he mentions that Sotomayor "will bring not only the experience acquired over the course of a brilliant legal career, but the wisdom accumulated over the course of an extraordinary journey -- a journey defined by hard work, fierce intelligence, and that enduring faith that, in America, all things are possible".
"Wisdom" is an important characteristic to look for in a judge. This is why we use human beings as judges, not computer programs using LexisNexis.
I think you're setting up a straw man here. Or maybe kicking at a straw man built by Rush Limbaugh?
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The points you make are valid, and that is a positive sign. As noted elsewhere, the Ricci v. Stefani ruling is not as it has been elsewhere represented. Nevertheless, I'm still bothered by her implication that her background automatically makes her experience more valid, and her decisions more correct, than anyone who doesn't share that background.
As for Limbaugh, I honestly couldn't care less what that ass chooses to bloviate about. He's almost, but not quite, as self-discrediting as Michael Savage.
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Limbaugh blows hot air out of his hind end. Real news programs report that "Rush Limbaugh says so and so, and the White House responds with.... -- or "and the White House refuses to respond". The response, or lack, is then discussed and pontificated.
I think that that's what's happened here. Limbaugh and Savage set up straw men that the regular media grabbed hold of: "Is it a bad thing that Sotomayor is empathic? What do you think Chet?"
Limbaugh sets the topics we discuss because the media is so afraid of appearing biased that they treat him like a fellow journalist instead of as the mildly entertaining ass-hat that he is.
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I have often considered that, were a miracle to happen that suddenly placed me in the position of the President, one of my first actions would be to convene a committee of Constitutional scholars with a mandate to review major acts of Congress and the White House, including executive orders, and evaluate them for constitutionality, starting at the present day and working backwards. The end goal would, of course, be to purge the body of US law of such things as civil forfeiture and warrantless searches, terminate the illegal wiretap programs, and in general restore compliance with the Constitution and the legal presumption of innocence.
Yes, some of this would make law enforcement's job harder. But in that regard I tend to agree somewhat with William Whitelaw, who would tell law enforcement every time they came to him asking for more powers that they were a bunch of whiners if they didn't think they could do their jobs with the powers they already had.
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Although some cases, such as Padilla, have entered the appeal process and . . . come up short. Imprisonment without trial or access to a lawyer . . .
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After that, they started thinking about actual ability to do the job.
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Hell, that probably applies to the vast majority of political appointments.
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Heck, the last time we'd an appointment as blatantly driven by race as this one, our Democratic friends whined mightily about how hellishly unqualified Thomas was for the court. (Or gender with whatever the hell W was thinking with Harriet Miers...)
You might be able to argue that Marshall's appointment was similarly motivated, except that his qualifications to be on the Court were impeccable. Even in 1967, there were only 11 votes against him in the Senate.
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I find Sotomayor’s attitude troubling not because she is valuing the background of being a Latina — which I think has value — but because she is implicitly devaluing the backgrounds of all the other old, white European–descent males on the federal bench.
On the Eighth Circuit bench there’s a very kind old man named Gerald Heaney. Judge Heaney is one of the nicest gentleman it’s ever been my good fortune to know. He’s a bleeding–heart liberal who has never met a death penalty case he likes. When he was a young man he was an Army Ranger fighting the Nazis in World War Two. He invaded Normandy, where over half his Ranger unit either drowned or was shredded by machinegun fire before they ever reached the beach; he fought at Remagen; he was in Operation Market Garden. He was the operations officer responsible for the planning and execution of the capture of Hill 400 (http://en.wikipedia.org/wiki/Hill_400) during the Battle of Hürtgen Forest in 1944. The Rangers took ninety percent casualties in that operation; he was one of the lucky unwounded few. Judge Heaney personally buried many of his closest friends there. When V–E day came around he was confined to a hospital when 2nd Ranger was going home. He made a personal appeal to General Patton to be allowed to go home with his unit. When Patton heard of all his campaigns and saw all his medals, Patton told his aide–de–camp to get Judge Heaney anything the hell he wanted — then saluted Heaney and left the room.
(When your exploits impress Patton… good grief. Could there possibly be a stronger endorsement of his career?)
When Judge Sotomayor says she feels a “wise Latina” would make better judgments due to the wealth and breadth of her experiences as compared to a white male, she is implicitly devaluing Judge Heaney’s experiences. Does the breadth and depth of her experiences make her more qualified to make rulings pertaining to military operations, for example, than Judge Heaney’s?
There is a world of difference between saying that her unique background gives her a unique and useful perspective — but I strongly dispute her claim that her perspective is better, and I find that claim to be deeply troubling.
I strongly recommend reading Judge Heaney’s Wikipedia entry (http://en.wikipedia.org/wiki/Gerald_Heaney). It is stunning reading, simply stunning. Having met the man, I can say that you would never suspect from meeting him just how luminous his personal history is. He’s a quiet, humble and immensely friendly grandfather–like figure.
With respect to the objective application of the law, Dad is fond of telling this story about Justice Oliver Wendell Holmes. Justice Holmes was walking to the Court one day and encountered a famous solicitor. “Do justice, sir!” the attorney greeted him. Holmes angrily snapped back, “I will do no such thing! I will enforce the law!”
It’s a shame we live in world that has abandoned Holmes’s principle.
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The sad thing is that we have a word for this. It took you a lot of text to avoid using it, tho. This is racism, pure and simple...
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No, it’s actually not.
Imagine Gerald Haney were to be one of the Nisei in the 442nd, a group of Japanese–Americans who fought with great distinction in Europe during World War Two. She would still be devaluing his experiences.
Her word was “Latina.” Her belief that her viewpoint is as much a part of gender politics as racial politics, and also as much as economics, since by her speeches it appears she considers growing up poor to be an inseparable part of her Latina experience.
If it’s racism, then it’s also sexism. Given this, I think it’s more apt to say she’s playing “identity politics” (all of the things that make me me, make me uniquely qualified/privileged over others) rather than to use the less accurate terms of racism and/or sexism and/or classism.
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I stand corrected.
"Second, 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."
You are right. It is racist and sexist, pure and simple.
Sorry for the omission.
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BTW, the Senate Republicans are asking (http://tpmdc.talkingpointsmemo.com/2009/06/senate-gops-reaction-to-sotomayor-hearings-well-have-to-review-76-cases-per-day.php?ref=fpb) for time to review *all* her cases. At that rate, she might be confirmed in 2011.
For a loser party, they sure have balls.
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