Tuesday :: May 26, 2009

The Sotomayor Nomination: Reactions And Analysis

by Turkana

Scotusblog on the four main likely attacks:

1) That she is not smart enough for the job.

The objective evidence is that Sotomayor is in fact extremely intelligent. Graduating at the top of the class at Princeton is a signal accomplishment. Her opinions are thorough, well-reasoned, and clearly written. Nothing suggests she isn’t the match of the other Justices.

2) That she's a liberal ideologue.

There is no question that Sonia Sotomayor would be on the left of this Supreme Court, just not the radical left. Our surveys of her opinions put her in essentially the same ideological position as Justice Souter. In the ideological cases where her rulings have been reviewed by the Supreme Court (for example, Malesko and the pending Ricci case), her views have aligned with the left of the current Court.

3) That she's unprincipled or unfair.

The three pieces of evidence initially cited for that proposition will be (i) the disposition of the Ricci case (in which a panel on which Sotomayor sat affirmed the dismissal of white firefighters’ claims in a very short and initially unpublished opinion), (ii) a panel appearance in which she acknowledged that appellate judges effectively make policy, and (iii) a speech in which she talked about the role of her gender and ethnicity in her decision making.

These reeds are too thin for that characterization to take hold. The public neither understands nor cares about the publication practices of the courts of appeals. It also is easily able to accept a judge’s recognition of the lawmaking effects of her decisions and the influences of her background. There just isn’t any remotely persuasive evidence that Judge Sotomayor acts lawlessly or anything of the sort.

4) That she's "gruff and impersonable."

Judge Sotomayor’s personal remarks will resolve this question for the public, to the extent it cares at all. But there isn’t any reason to believe that she is anything other than a tough questioner. My impression from her questioning at oral arguments is that it is similar to the Chief Justice, Justice Scalia, and (in cases in which he was particularly engaged) Justice Souter.

Scotusblog believes her confirmation is assured.

Jack Balkin looks at pure pragmatics:

Barack Obama's nomination of Sonia Sotomayor is a good example of how Presidents make Supreme Court appointments: they balance political constituencies they wish to favor or reward and the predicted ease or difficulty of confirmation with their desire to have jurists who will cooperate with their policy initiatives.

Sotomayor will be the first Hispanic to serve on the Supreme Court if one does not count Benjamin Cardozo, a Sephardic Jew whose great-grandfather, Abraham Nunez Cardozo, emigrated to the United States from England. Her appointment is designed to please a two important constituencies for the Democratic party, Hispanics and women. Although the media debate has largely been about what the Court "needs" in terms of diversity and background experience (for example, the debate about "empathy"), a President is far more likely to be concerned with promoting his electoral interests and those of his party.

Scott Lemieux:

It's a good, solid pick. Not a home run like Karlan would have been, but I also don't think she'll be another Breyer; I see another Ginsburg at worst. For me, she would have been #2 among the viable candidates after Wood, and I don't think Wood is clearly more liberal; they're within a range in which appellate court records don't reveal enough information to make firm judgments.

He also dares the Republicans to try to block her nomination. They would lose on the politics.

He helpfully links to this New York Times case log (and it will be interesting to see how much of the criticism leveled at Sotomayor will actually be based on her judicial record), and to this analysis of her opinions by Scotusblog's Tom Goldstein.

My favorite line:

At the very least, this pick will make Jeffrey Rosen and Stuart Taylor cry.

And Glenn Greenwald:

It is very encouraging that Obama ignored the ugly, vindictive, and anonymous smear campaign led by The New Republic's Jeffrey Rosen and his secret cast of cowardly Eminent Liberal Legal Scholars of the Respectable Intellectual Center.  People like that, engaging in tactics of that sort, have exerted far too much influence on our political culture for far too long, and Obama's selection of one of their most recent targets both reflects and advances the erosion of their odious influence.  And Obama's choice is also a repudiation of the Jeffrey-Rosen/Ben-Wittes/Stuart-Taylor grievance on behalf of white males that, as Dahlia Lithwick put it, "a diverse bench must inevitably be a second-rate bench."

Obama has also ignored the deeply dishonest right-wing attacks on Sotomayor, beginning with the inane objection to her perfectly benign and accurate comments on videotape that appellate judges, as distinct from district court judges, "make policy."   Lawyer Anonymous Liberal thoroughly eviscerated that line of attack as the shallow and deceitful argument it is.  A similar avenue of certain attack -- that Sotomayor said in a 2001 speech that a female Latina judge has experiences that can inform her view of cases -- is equally frivolous.  There are a whole range of discretionary judgments which judges are required to make; does anyone actually doubt that familiarity with a wide range of cultural experiences is an asset?  

It's possible to take that view too far to the point where it becomes troubling, and Sotomayor should (and certainly will) be asked about it, but the comments themselves are entirely mainstream and uncontroversial.  As reflected by my own somewhat limited experience with Judge Sotomayor -- in which, in one case, she upheld the dismissal at trial of a race discrimination claim in a case with a highly sympathetic African-American plaintiff (even after a different District Judge denied summary judgment dismissal of that claim) while reinstating the plaintiff's disability discrimination claim -- she's hardly some rabid ideologue who dispenses with legal considerations in favor of social sympathies.  Sotomayor's opinions as compiled by Goldstein, as well as those who know her best, demonstrate the same thing.

Turkana :: 8:39 AM :: Comments (29) :: Digg It!