Congratulations, Justice Sotomayor

She wins approval 68-31. May she have many years of long, distinguished, and happy service.

Square One

Point:

"On the issue of the Hispanic voter, we have to do a lot more. We Republicans have to recruit and elect Hispanics to office," McCain told CNN's State of Union. "And I don't mean just because they're Hispanics, but they represent a big part of the growing population in America. And we have a lot of work to do there. And I am of the belief that unless we reverse the trend of Hispanic voter registration, we have a very, very deep hole that we've got to come out of."

While he was one of only a handful of Republicans willing to tackle immigration reform in 2007, McCain faced a massive deficit with Hispanic voters in the 2008 election. His aides have said that, were he not the home state senator, he would have lost Arizona to Barack Obama, in large part because Hispanics had left the Republican Party in droves.

Counterpoint:

Sen. John McCain (R-Ariz.) called Judge Sonia Sotomayor a “judicial activist” today, announcing he’ll vote against making her the first Latina on the Supreme Court.

Sotomayor “cannot change her record. She has a long record of judicial activism” as a federal judge since 1992, McCain said. “Her decisions too often stray from legal norms.”

Best of luck, Senator (via).

Sessions Gets Owned

There is an old lawyering maxim: Never ask a question you don't know the answer to. Senators presumably have their own, related maxim: Never make a snide comment unless you're absolutely sure it can't get thrown back in your face like a boomerang. Senator Jeff Sessions (R-AL), the Republican leading the Senate's anti-Sotomayor efforts, forgot that lesson and paid the price:

Sen. Jeff Sessions (R., Ala.), seeking to discredit Judge Sonia Sotomayor’s judicial philosophy, cited her 2001 “wise Latina” speech, and contrasted the view that ethnicity and sex influence judging with that of Judge Miriam Cedarbaum, who “believes that judges must transcend their personal sympathies and prejudices.”

“So I would just say to you, I believe in Judge Cedarbaum’s formulation,” Sessions told Sotomayor.

“My friend Judge Cedarbaum is here,” Sotomayor riposted, to Sessions’ apparent surprise. “We are good friends, and I believe that we both approach judging in the same way, which is looking at the facts of each individual case and applying the law to those facts.”

Cedarbaum agreed.

“I don’t believe for a minute that there are any differences in our approach to judging, and her personal predilections have no effect on her approach to judging,” she told Washington Wire. “We’d both like to see more women on the courts,” she added.

Of course, we all know the intellectual firepower Jeff Sessions brings to the table. Which is why it is all the more appalling we let someone like Al Franken share the floor with him. After all, Franken is just like Ann Coulter, if by "just like" we mean "has sound, mainstream policy positions in contrast to Coulter's proud advocacy of massive civil and human rights violations." But they do both sometimes make vulgar jokes.

SCOTUS Rules in Ricci

Showing that conservatives are just as capable of molding the law to suit their empathic preferences, the Supreme Court has ruled 5-4 in the moderately famous Ricci case that the city of New Haven acted wrongfully in throwing out the results of a firefighters' promotion test because the results were racially imbalanced. The case has gained some renown because the lower court opinion was authored by Judge Sotomayor, currently awaiting confirmation to the high court.

Sotomayor Too Thorough

Apparently that's literally the latest complaint about her: That her opinions are too methodical, address too many issues, and don't have enough quotable catch-phrases. Of course, everyone knows that thoroughly addressing each and every argument is a hallmark of judges who lack the intelligence to be on the bench. [/sarcasm]

As an aspiring attorney, it is certainly more pleasurable for me to read opinions that have a little snap to them. But a judge's first job isn't to be a stand-up comic, it is to, well, calmly and methodically dispose of the issues before them. And I will note that judges who wrote for the quote sometimes miss the important legal issues in the process. So once again, advantage Sotomayor.

Turning One's Back

Perhaps the most personally loathsome Supreme Court Justice in our nation's history was James McReynolds. Appointed to the bench in 1914 by Woodrow Wilson, McReynolds was an arch-conservative, becoming one of the infamous "four horseman" who tried through hell and high water to stop FDR's New Deal. But there are plenty of conservative judges out there. What distinguished McReynolds was his flagrant, public, and unapologetic racism, sexism, and anti-Semitism. McReynolds refused to speak to the Jewish Justices with whom he served, going so far as to cancel a scheduled photo session of the Court because he would be forced to sit next to Louis Brandeis, and signing a letter urging the President not to "afflict the Court with another Jew." He would often leave the bench if a female attorney rose before the court. And in one of his all time nadirs, he conspicuously swiveled his chair to turn his back on the brilliant Black lawyer, Charles Hamilton Houston, during oral arguments for Missouri ex rel. Gaines v. Canada. Unsurprisingly, Justice McReynolds dissented in that landmark case (one of the very first to strike down a school segregation policy), declaring that integration would "damnify both races".

I was reminded of McReynolds when I read that Sen. James Inhofe (R-OK) is refusing to even meet with Sonia Sotomayor, saying his opposition was a "foregone conclusion". It is just the sort of disrespect that McReynolds displayed to Houston so many years ago -- the sort, in other words, that I had hoped we would have moved past by now.

Look -- I understand that to some extent these meetings are a charade -- the factors which will cause any given Senator to vote yea or nay on Judge Sotomayor's nomination are not ones likely to be affected by a one-on-one session. But there are still norms of collegiality and respect that one demonstrates to those persons you believe have a right to be treated with dignity, and this is one of them. Pierce Butler, after all, joined McReynolds in his Gaines dissent, indicating his racial views were none-too-progressive either, yet apparently he didn't not feel personally aggrieved by having to look Houston in the eye. Senator Inhofe has already distinguished himself amongst elected Republicans for making racialist charges against Judge Sotomayor. This, alas, is just par for the course.

Via.

....And We Have a New "Winner"

G. Gordon Liddy takes the racism and sexism cake, both by referring to the Spanish language as "illegal alien", and by saying that women would make inferior justices because they menstruate.

Hats off to you, Mr. Liddy!

We Are All Sotomayor

Michelle Cottle nails it:

Not to state the obvious, but an upper-middle class white guy reared in the suburbs is shaped by his experiences, carries certain assumptions, and views the world through a particular prism as much as a working-glass Puerto Rican gal from the Bronx, or, for that matter, the half-black son of a single mom raised in Hawaii. The person belonging to the cultural/ethnic/religious/gender/racial demographic that has traditionally dominated a field (and thus whose perspective has long been the default) may not have given as much thought to his prism as a member of a non-dominant group. But that does not make his prism a neutral one. It simply allows him to more freely indulge his delusions of pure rationality and objectivity.

We all come from a perspective. There are no exceptions, and serious damage is done by those who deny it.

Introspection and intellectual growth doesn't mean trying to transcend perspective. It means striving for the sort of critical awareness that lets us grasp the effect of our social location, account for it, and do our best to twist around in our cement boots (to borrow from Stephen Feldman) and catch glimpses of alternate paths and states of being.

The Summa of All Fears

Fred Barnes and Bill Bennett talk about Sotomayor's academic credentials:

BARNES: I think you can make the case that she's one of those who has benefited from affirmative action over the years tremendously.

BENNETT: Yeah, well, maybe so. Did she get into Princeton on affirmative action, one wonders.

BARNES: One wonders.

BENNETT: Summa Cum Laude, I don't think you get on affirmative action. I don't know what her major was, but Summa Cum Laude's a pretty big deal.

BARNES: I guess it is, but you know, there's some schools and maybe Princeton's not one of them, where if you don't get Summa Cum Laude then or some kind of Cum Laude, you then, you're a D+ student.

Ta-Nehisi Coates promises to stop being amazed soon. I'm just curious what Latin honors, if any, appear after their respective degrees.

Look, Carleton was one of those places where cum laude wasn't that hard to attain. It wasn't D+ work (3.25 average, so B/B+), but it wasn't difficult. Magna (what I got) required a 3.5 average, which still was quite doable for a hard worker. But Summa sat at a lofty 3.9 average, and it was quite an accomplishment -- I'd say that about 10 people in our class of over 450 reached it.

Chicago's equivalent honors (honors, high honors, and highest honors) are given at 179 (B+), 180.5 (A-), and 182 (A) respectively -- but thanks to a curve where the median is set at 177, any and all honors require serious chops. Only a bare handful achieve high honors, and highest honors, in fact, only pops up once every several years.

In sum, I'd be very surprised if at Princeton, or any other college in the country, Summa can be taken for granted. But if a Latina woman can get it, I guess it must come cheap.

Cornyn Hits Back at Limbaugh

I have to say, of all the Republicans I thought might take on Rush Limbaugh and Newt Gingrich for calling Sonia Sotomayor racist, Sen. "Big" John Cornyn (R-TX) ranked near the bottom of the list. But shows what I know:

"I think it's terrible," Sen. John Cornyn, the chairman of the National Republican Senatorial Committee, told NPR's "All Things Considered" Thursday. "This is not the kind of tone any of us want to set when it comes to performing our constitutional responsibilities of advise and consent.”
[...]
"We are all a product of our upbringing and who we are and I think it’s a fact people do have different backgrounds, but I don't think those background ought to determine what the law is," Cornyn said to NPR of Sotomayor's Berkeley comments.

The NRSC chief also brushed off the Limbaugh and Gingrich statements while noting neither man holds an elected office.

"Neither one of these men are elected Republican officials. I just don't think it’s appropriate. I certainly don't endorse it. I think it’s wrong," he said.

We'll see if he walks it back after the inevitable right-wing outcry. But still -- well-said, Senator.

They Really Believe This Shit!

Steve Benen compares Republican stance on Estrada with Republican claims about Sotomayor. Picking out GOP hypocrisy is too easy, but it does verify the realization I had after the Palin selection that Republicans actually believe their own rhetoric about identity politics. The way they handled the Estrada campaign -- rampant accusations that Latinos were going to hate Democrats forever for bottling up his nomination, and that only racism could explain it -- made it clear that they really did think that the way most American Latinos understood racism was "opposing a Latino for any reason." And whether they viewed that outlook as savory or not, they tried to exploit it. It didn't seem to occur to them that Latinos are sophisticated political actors who can understand opposition to a presidential nominee of their own ethnicity (indeed, might share it!) based on substance, and thus would not find Democratic attacks on Estrada problematic insofar as they stemmed from the perfectly reasonable (for a Democrat) objection that he was too conservative.

In contrast to the ideology-focused campaign against Estrada, Matt Yglesias points out,

The argument about Sonia Sotomayor consists of the idea that we should discount her career and her degrees because those are just the results of the kind of “preferential treatment” that poor Puerto Rican girls from the projects get. We’ve also heard that she has a troubling fondness for Puerto Rican food. That it’s unreasonable that she pronounces her name as if it’s a Spanish word. We’ve heard that she’s a soft-hearted woman who wants to set aside the law in favor of empathetic victims, and also heard complaints that she’s failed to set aside the law in order to help out empathetic white people. These kind of criticisms are going to drive Hispanics away from the conservative cause not because conservatives are criticizing a Latina, but because they’re criticizing her in terms that imply a generalized skepticism about the qualifications of all American Hispanics, a loathing of Latin culture, and a monomaniacal obsession with defending the interests of white people.

Karl Rove took the tepid Latino backlash to the anti-Estrada campaign as a sign that its open season on Sotomayor. But that only makes sense if one adheres to the spectacularly unsophisticated view of racism that Republicans hold. Applied to Sotomayor, they are going to choke on those words.

Two More Sotomayor Quick Hits

Douglas Kmiec offers his endorsement, and Richard Stith notes that, given Judge Sotomayor's record on abortion cases, she's either not a judicial activist, or not pro-choice, but certainly not both.

Rolling Thunder

Much like Matt Yglesias, the kids at Tapped have been putting out a flurry of fabulous Sotomayor related posts. I can't even begin to collect the links, so just head over and read.

Yggy on Sotomayor

Matt Yglesias has been blogging up a storm on Judge Sotomayor today, with three great posts in succession. The most important point he makes, I think, is how the anti-Sotomayor campaign -- which thus far has focused nearly entirely on her being a Latina woman and thus racist/unqualified/unintelligent/hot-blooded is likely to spark a pretty intense rallying reflex around her by the Latino community which is going to come back and bite the GOP hard. After all, Yglesias notes he has barely any Hispanic identity (his paternal grandfather is Cuban, hence "Yglesias", but aside from that he's Ashkenazi Jewish), but the message he's been getting is that -- by virtue of his last name -- all his accomplishments and accolades will immediately be considered suspect if he attempts to take a high profile political position.

There is plenty of diversity in the Latino community. But one thing that brings people together is a shared history of oppression. There is a reason that Israel defines "Jew" not based off of religious criteria but the more morbid "who would the Nazis have killed?" Latinos from a broad swath of backgrounds and political beliefs can still see the writing on the wall when huge chunks of the (still mostly lily-White) Republican Party suddenly decide that Princeton, Yale, and nearly two decades of federal court experience makes one a big ol' dummy, so long as you're named Sotomayor and not Alito. If they don't think this will have an effect, they're dreaming.

Round Two Picks

Fresh off the verification of my oracle status with the selection of Sotomayor two years after I made the call, I'm deciding to let it ride. Supreme Court appointment #2 will be granted to Solicitor General Elena Kagan.

Can I go two-for-two? We eagerly await the next chime on the SCOTUS death clock to find out!

That Activism Thing

Judge Sotomayor's most controversial case right now is the New Haven firefighter's case, where she upheld the city throwing out the results of a promotion test because they would have led to a promotional scheme inconsistent with the mandates of Title VII. The firefighters (mostly White) who lost out sued, alleging discrimination.

Reasonable people can disagree on this case (Ta-Nehisi Coates, I know, has been skeptical). But it is important, for those who wave "activist" like a talisman, to remember that this is a case of the judiciary deferring to democratically elected officials on matters of social policy. The closest thing "activism" has to a principled definition is "striking down democratically enacted laws" (and, ironically enough, it was the conservative wing of the Rehnquist court that made it the most activist Supreme Court in history). But the popular definition of "activist" is "judge who makes a ruling I dislike" (see also, Kelo), so I doubt this observation is going to deter much of anyone.

The Pick

It is 2nd Circuit Judge Sonia Sotomayor. And let me just say I called it ... in 2007 (I also registered this opinion to someone on a summer 2007 train ride. I wonder if he remembers and is appropriately awed). Congratulations to Judge Sotomayor, whom I'm sure will make a fine totally bad-ass Justice.

Collective hugs from our Civil Procedure II class, Judge Wood!

You'd Think He Would Have Learned

Apropos Jeffrey Rosen making unsubstantiated claims about Judge Sonia Sotomayor's intelligence, we find out this is rather old hat for Mr. Rosen. When Judge Diane Wood was appointed to the 7th Circuit by President Clinton, Rosen argued that she exemplified how "single-minded pursuit of diversity, combined with an eagerness to avoid controversy, has kept him from appointing the best available legal minds to the courts."

Of course, history has proven Rosen dead wrong, as Judge Wood has shown herself to be one of the brightest stars of the judiciary and is widely recognized as quite the intellectual heavyweight. One would have thought he might have gained some humility from the experience. Alas, he doesn't seem to have skipped a beat.

But as Scott Lemieux aptly points out, there is an extra layer of bizarro here: Judge Wood's credentials upon appointment (service in the Justice Department and longtime professor at the University of Chicago) were roughly identical to those of Antonin Scalia's when he was nominated to the D.C. Circuit. Yet nobody ever questioned Scalia's credentials -- indeed, Scalia has a somewhat overrated reputation as the intellectual titan of the Supreme Court. We saw the same delightful dynamic comparing the reactions that met longtime 3rd Circuit Appeals Judge and Princeton/Yale grad Samuel Alito's nomination to those that met the potential of longtime 2nd Circuit Appeals Judge and Princeton/Yale grad Sonia Sotomayor.

Judge Sotomayor Just Shot Up the Badass Meter

Funny thing. Verum Serum excerpts from a speech by Judge Sonia Sotomayor, where she talks a lot about the role of "experience" (as in, one's experience as a White man or a Latina woman) in judging. She quite vigorously defends the notion that identity matters, and disclaims the idea that there is some grand ahistorical legal "right answer" that transcends perspective or partiality. Verum finds this terrifying. Needless, to say, I (White, male, straight -- alas Jewish -- me) love it. She even cites to Martha Minow!

Some of these arguments go back to what I wrote defending Justice Ginsburg when she said that female judges may possess certain "sensitivities" that male judges lack. This is almost indisputably true -- women, for example, live having been pregnant or knowing they could become pregnant. Men don't experience that. Recent studies (thanks to Gaucho for pointing to the link) have demonstrated that male judicial voting patterns on sexual discrimination cases are significantly impacted by having a woman on the panel -- even controlling for ideology. And since the law often asks judges to determine questions which turn on subjective experience (is X regulation an "undue burden" on a women's right to choose? Was a given fact pattern "pervasive sexual harassment"?), these experiential differences matter. That isn't to say that gender or race is determinative in cases in which gender or race might serve to differentiate experiences. Race and gender are (among) the identity axis which construct the vantage point through which we see the world -- this affects, but does not determine, how we interpret it.*

There is a certain naivety possessed by many lay folk -- and a good many lawyers and law students, alas -- that The Law exists hermetically sealed from human sight or touch. I can understand how lay folks buy into the myth -- it is the dominant conception -- but I utterly fail to see how anyone who has been through a year of law school can still clutch to it. Courts are constantly forced to ask questions about the nature of justice and fairness, to make evaluative decisions, in short, to judge. The entire body of common law is essentially one long game of "what makes sense?" Constitutional law is no different: What is "cruel" punishment? What process is "due"? What is the technical definition of "equal protection"?

These are not questions that come with objective answers; indeed, I would question quite strongly whether they are even candidates for objective truth. To be sure, we often claim they are -- we take the position held by whoever currently holds the crown gavel and proclaim it to be Divine Revelation Black Letter Law. But this claim to impartiality is a chimera -- it doesn't correspond to anything real. A rule that works from the perspective of one position in the social order or one bundle of value commitments may seem bizarre or oppressive to another person differently situated or with a different set of commitments. We aren't equipped with the tools to resolve these disputes by brute intellectual force: our choices are between simply entrenching the dominant view and calling it True, or honestly engaging with and grappling with alternatives, with an eye towards mutual agreement and a commitment to mutual respect. From within this paradigm, it is beyond obvious that a multiplicity of perspectives is of benefit to the judicial branch. This has been recognized by theorists left (Jack Balkin, Cass Sunstein) and right (Richard Posner).

If we are serious in upholding a value of inclusion and mutual respect, we must be prepared to hear alternative perspectives which may clash -- sometimes dramatically -- with what we take to be settled or obvious interpretations (of law, of policy, of social organization, of anything). Otherwise, as Jack Balkin puts it, "we may confuse our conception of what is reasonable with Reason itself." It is, of course, more comforting to cloister ourselves into homogeneous bubbles and then shake our fist at those who wish to introduce "bias" into the system. But that is not consistent with a commitment to law, ethics, or equality.

* See Iris Marion Young, Inclusion and Democracy (Oxford: Oxford UP 2000), Ch. 4.