Obama nominates Sonia Sotomayor

[CmdrWilkens]

She believes in empathy, which is NOT a quality of a judge.

I doubt this woman would be so quick to say this if she was at end of the gavel. I'm not really all that familiar with the courts in America, but do they have the doctrine of equity, or something equivalent? The law is harsh, and sometimes stringent application of the law is not appropriate in every case. This is a pretty basic concept which I learnt in the first couple of weeks of my first year introductory course.

Technically almost all US courts are of both law and equity however the focus has been principally towards findings of law.

[SirNitram]

Here are more tidbits: a Google search turned up seven Sotomayor cases referred to the SC. I paid attention to the rulings, not to the opinions (it's a conservative blog).

Or we could stop pretending conservative blogs are a group attached to reality and reason and very reliable, and go to, oh, SCOTUSBlog, as an example.

Or we could go look up the Majority and Dissenting opinions of those cases which were granted cert, and see if there is the slightest indication that Sotomayor's actions are what was the basis.

Or you know, just not show the world you're just trolling conservative blogs for your pre-packaged arguments.

[Darth Wong]

I'm so sick of this "check my favourite right-wing blog, then parrot whatever they say while pretending I've seriously researched this subject" tactic. I've been watching right-wingers do it for years.

[Mr Bean]

I'm so sick of this "check my favourite right-wing blog, then parrot whatever they say while pretending I've seriously researched this subject" tactic. I've been watching right-wingers do it for years.

Sir you define the secondary reason for FOX New's existence is to give right-winger's a place to repeat talking points unchallenged as many times as possible while it's anchor's repeat and agree with said talking points, again as many times as possible.

[SirNitram]

Have I mentioned lately that the GOP is full of goddamn retards? Link

Excerpt which skips over the 'Ohhhhh Noooooo, she's NOT AN OLD WHITE MALE, SHE MIGHT HAVE BIAS!(Because old white males never protect the white male power structure, as it's apparently called)'.

Sotomayor also claimed: “For me, a very special part of my being Latina is the mucho platos de arroz, gandoles y pernir — rice, beans and pork — that I have eaten at countless family holidays and special events.”

This has prompted some Republicans to muse privately about whether Sotomayor is suggesting that distinctive Puerto Rican cuisine such as patitas de cerdo con garbanzo — pigs’ tongue and ears — would somehow, in some small way influence her verdicts from the bench.

Yes, folks, if you like foreign food, you're a goddamn sophistic commie, who will subjectively rule on objective matters, unlike white male conservatives, who are some sort of superhuman calculators in robes.

[Thanas]

So...after Dijongate we will have gandolesgate?

Yeah, there is no way this will paint the GOP as idiots with the voters, no Sir.

[Darth Wong]

Again, they're just playing to their rural xenophobe base. Those guys eagerly lap up this "poor persecuted white man" bullshit. They've taken the widespread criticism about their refusal to branch out from their base and ... completely ignored it.

[Vympel]

LOL. I love these retards. Now they're focusing on her 'reversal rate' (an entirely new, made up metric for the quality of a Supreme Court pick) as an argument. Just pathetic.

[Darth Wong]

LOL. I love these retards. Now they're focusing on her 'reversal rate' (an entirely new, made up metric for the quality of a Supreme Court pick) as an argument. Just pathetic.

This ... from the same people whose greatest goal in life is to reverse Roe v Wade?

[Count Chocula]

They've taken the widespread criticism about their refusal to branch out from their base and ... completely ignored it.

Thank you. Thanks a lot! [/sarcasm] Getting back to the "GOP Rebound" thread is getting harder by the day, since the GOP apparently has failed to realize that there are now more registered Independents than either Democrats (1%) or Republicans...and lots more of the Independents came from the GOP rolls than the Dems.

[Vympel]

This ... from the same people whose greatest goal in life is to reverse Roe v Wade?

Sorry, I was a bit vague- what these fucktards are doing is taking all her decisions that were overturned by appellate courts and using it to impugn her competence by trying to pretend it's some sort of 'batting average'. Not only is it idiotic on its face for assuming that in every appeal she must've personally erred, they don't mention that only a handful of cases ever get appealled at all.

[Dominus Atheos]

The Hill

Whoops. The Republican National Committee (RNC) has apparently inadvertently released its list of talking points on the nomination of Judge Sonia Sotomayor to the Supreme Court.

Included on the released list were a few hundred influential Republicans who were the intended recipients of the talking points. Unfortunately for the RNC, so were members of the media.

Here are the talking points:

• President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court is an important decision that will have an impact on the United States long after his administration.
• Republicans are committed to a fair confirmation process and will reserve judgment until more is known about Judge Sotomayor's legal views, judicial record and qualifications.
• Until we have a full view of the facts and comprehensive understanding of Judge Sotomayor's record, Republicans will avoid partisanship and knee-jerk judgments - which is in stark contrast to how the Democrats responded to the Judge Roberts and Alito nominations.
• To be clear, Republicans do not view this nomination without concern. Judge Sotomayor has received praise and high ratings from liberal special interest groups. Judge Sotomayor has also said that policy is made on the U.S. Court of Appeals.
• Republicans believe that the confirmation process is the most responsible way to learn more about her views on a number of important issues.
• The confirmation process will help Republicans, and all Americans, understand more about judge Sotomayor's thoughts on the importance of the Supreme Court's fidelity to the Constitution and the rule of law.
• Republicans are the minority party, but our belief that judges should interpret rather than make law is shared by a majority of Americans.
• Republicans look forward to learning more about Judge Sotomayor's legal views and to determining whether her views reflect the values of mainstream America.

President Obama on Judicial Nominees

• Liberal ideology, not legal qualification, is likely to guide the president's choice of judicial nominees.
• Obama has said his criterion for nominating judges would be their "heart" and "empathy."
• Obama said he believes Supreme Court justices should understand the Court's role "to protect people who may be vulnerable in the political process."
• Obama has declared: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old-and that's the criterion by which I'll be selecting my judges."

Additional Talking Points

• Justice Souter's retirement could move the Court to the left and provide a critical fifth vote for:
• Further eroding the rights of the unborn and property owners;
• Imposing a federal constitutional right to same-sex marriage;
• Stripping "under God" out of the Pledge of Allegiance and completely secularizing the public square;
• Abolishing the death penalty;
• Judicial micromanagement of the government's war powers.

UPDATE: These points were represented in RNC Chairman Michael Steele's statement on the nomination:

"Republicans look forward to learning more about federal appeals court judge Sonia Sotomayor's thoughts on the importance of the Supreme Court's fidelity to the Constitution and the rule of law," he said. "Supreme Court vacancies are rare, which makes Sonia Sotomayor's nomination a perfect opportunity for America to have a thoughtful discussion about the role of the Supreme Court in our daily lives. Republicans will reserve judgment on Sonia Sotomayor until there has been a thorough and thoughtful examination of her legal views."

[Thanas]

Justice Souter's retirement could move the court to the left? So if the arguably most leftist judge leaves, that moves the court to the left?

[FSTargetDrone]

Justice Souter's retirement could move the court to the left? So if the arguably most leftist judge leaves, that moves the court to the left?

The right must be pretending that because he was selected with an expectation to be reliable conservative by a Republican president, he is still rightist (which he has not been for years).

[Darth Wong]

"Judicial micromanagement of the government's war powers", eh? Right on, brother! It's not as if the whole purpose of the Supreme Court is to act as a check against the power of the other branches of government, right?

[Ziggy Stardust]

Imposing a federal constitutional right to same-sex marriage

I think the phrasing of this is interesting. Usually the GOP hides behind the excuse that they are trying to preserve the sanctity of marriage, but here they actually just came out and said, "we don't want them gays to have rights."

[Darth Wong]

Imposing a federal constitutional right to same-sex marriage

I think the phrasing of this is interesting. Usually the GOP hides behind the excuse that they are trying to preserve the sanctity of marriage, but here they actually just came out and said, "we don't want them gays to have rights."

American conservatives have been selling this perverse "we have the right to take away other peoples' rights" thing ever since Slavery became "States' Rights".

[Surlethe]

I love that - "IMPOSING" a federal constitutional right. As though the court will be forcing straight couples to break up and turn gay.

[SirNitram]

Supposedly, the GOP's Senators won't block her. Supposedly. Of course, this doesn't mean the engine of radio, TV, writers, and assorted insults to intelligence isn't going to try and make it happen. They exist only to antagonize, not to support a party in governing.

From the realms of radio:

LIDDY: I understand that they found out today that Miss Sotomayor is a member of La Raza, which means in illegal alien, “the race.” And that should not surprise anyone because she’s already on record with a number of racist comments.

You have to love that. 'In Illegal Alien'. Just admit it, you racist fuck: You can't admit there might be a language used in this country that isn't a corrupted form of English.

LIDDY: Let’s hope that the key conferences aren’t when she’s menstruating or something, or just before she’s going to menstruate. That would really be bad. Lord knows what we would get then.

Bonus bigotry!

From the TeeVee, we have the ever-amusing Tancredo.

TANCREDO: If you belong to an organization called La Raza, in this case, which is, from my point of view anyway, nothing more than a Latino — it’s a counterpart — a Latino KKK without the hoods or the nooses. If you belong to something like that in a way that’s going to convince me and a lot of other people that it’s got nothing to do with race. Even though the logo of La Raza is “All for the race. Nothing for the rest.” What does that tell you?

SANCHEZ: Alright. We’re not talking about — we’re not talking about La Raza –

TANCREDO: She’s a member! She’s a member of La Raza!

Pay attention to meeeee! I have a talking point! Listen to it!!!

And here's my personal favorite, I will quote each day's entry.

Assimilated Pronunciation [Mark Krikorian]

So, are we supposed to use the Spanish pronunciation, so-toe-my-OR, or the natural English pronunciation, SO-tuh-my-er, like Niedermeyer? The president pronounced it both ways, first in Spanish, then after several uses, lapsing into English. Though in the best "Pockiston" tradition, he also rolled his r's in Puerto Rico.

By the way, can anyone point me to the video of the 1990 Saturday Night Live skit with Jimmy Smits where the news staff were doing ridiculously exaggerated pronunciations of "Neek-o-rah-gwa" and the like? I can't find it online or on DVD.

Childish but forgettable. But instead of sinking back into the mire of racist, stupid, thinly veiled bigotry, he had to come back for more.

It Sticks in My Craw [Mark Krikorian]

Most e-mailers were with me on the post on the pronunciation of Judge Sotomayor's name (and a couple griped about the whole Latina/Latino thing — English dropped gender in nouns, what, 1,000 years ago?). But a couple said we should just pronounce it the way the bearer of the name prefers, including one who pronounces her name "freed" even though it's spelled "fried," like fried rice. (I think Cathy Seipp of blessed memory did the reverse — "sipe" instead of "seep.") Deferring to people's own pronunciation of their names should obviously be our first inclination, but there ought to be limits. Putting the emphasis on the final syllable of Sotomayor is unnatural in English (which is why the president stopped doing it after the first time at his press conference), unlike my correspondent's simple preference for a monophthong over a diphthong, and insisting on an unnatural pronunciation is something we shouldn't be giving in to.

For instance, in Armenian, the emphasis is on the second syllable in my surname, just as in English, but it has three syllables, not four (the "ian" is one syllable) — but that's not how you'd say it in English (the "ian" means the same thing as in English — think Washingtonian or Jeffersonian). Likewise in Russian, you put the emphasis in my name on the final syllable and turn the "o" into a schwa, and they're free to do so because that's the way it works in their language. And should we put Asian surnames first in English just because that's the way they do it in Asia? When speaking of people in Asia, okay, but not people of Asian origin here, where Mao Tse-tung would properly have been changed to Tse-tung Mao. Likewise with the Mexican practice of including your mother's maiden name as your last name, after your father's surname.

This may seem like carping, but it's not. Part of our success in assimilation has been to leave whole areas of culture up to the individual, so that newcomers have whatever cuisine or religion or so on they want, limiting the demand for conformity to a smaller field than most other places would. But one of the areas where conformity is appropriate is how your new countrymen say your name, since that's not something the rest of us can just ignore, unlike what church you go to or what you eat for lunch. And there are basically two options — the newcomer adapts to us, or we adapt to him. And multiculturalism means there's a lot more of the latter going on than there should be.

This just amazes me. Multiculturalism is bad because I don't like pronouncing her name correctly. And, he assures us, this is totally legitimate to him. He actually believes pronouncing something correctly is some kind of cultural failure. That him, or indeed, anyone else, pronouncing her name correctly(As he knows how to, quite clearly), is an affront to assimilation. Now look at his last name, and realize that he was saved his own prescribed fate because of those who stood up against the Ellis Island practice of changing last names.

And then, following being mocked on MSNBC's Countdown as the World's Worst one night, we gets out the jackhammer and goes even deeper. It's lengthy as he tries to do a 'I'm so cool because the COMMIES hate me' dance, but here's the bit of what-passes-for-substance.

Lots of the responses focused on my various bodily orifices and what should be done with them, but for those actually interested in the point, here's what I was trying to get across: While in the past there may well have been too much social pressure for what sociologists call Anglo-conformity, now there isn't enough. I think that's a concern that most Americans share at some level, which is the root of the angst over excessive immigration, bilingual education, official English, etc.

I agree, there should be more anglo-conformity. Turn over your handguns, secure your rifles at hunting clubs, and prepare to learn what Parliment is. THEN, only then, will anglo-conformity clearly match what this gentleman insists.

If, for a moment, he was aware of what he was spewing.

[Gerald Tarrant]

Imposing a federal constitutional right to same-sex marriage

I think the phrasing of this is interesting. Usually the GOP hides behind the excuse that they are trying to preserve the sanctity of marriage, but here they actually just came out and said, "we don't want them gays to have rights."

Not really, their position may not be in vogue anymore (and they tend to sacrifice it for political expedience cf. the war on drugs) but the Republicans have had a tendency to emphasize the State's Rights angle of Federalism. Sometimes this does overshadow other aspects of what might be labeled the "conservative agenda".

An example of this Gonzales v. Raich when most of the conservative wing of the court disagreed with the expansion of the scope of the inter-state commerce clause, which has been a fairly consistent boogieman of the right. I remember reading screeds on it at least 10 years ago (although there seems to be more urgency about it when there's a Democrat in charge). Not all republican legal minds think this way, but it's a pretty long-running argument in conservative journals like the Heritage Foundation's, or national review.

[CarsonPalmer]

Most e-mailers were with me on the post on the pronunciation of Judge Sotomayor's name (and a couple griped about the whole Latina/Latino thing — English dropped gender in nouns, what, 1,000 years ago?). But a couple said we should just pronounce it the way the bearer of the name prefers, including one who pronounces her name "freed" even though it's spelled "fried," like fried rice. (I think Cathy Seipp of blessed memory did the reverse — "sipe" instead of "seep.") Deferring to people's own pronunciation of their names should obviously be our first inclination, but there ought to be limits. Putting the emphasis on the final syllable of Sotomayor is unnatural in English (which is why the president stopped doing it after the first time at his press conference), unlike my correspondent's simple preference for a monophthong over a diphthong, and insisting on an unnatural pronunciation is something we shouldn't be giving in to.

That's idiotic; every single one of my Italian cousins pronounces the name that way naturally.

And Liddy? That is G. Gordon, right? The man who suggested firebombing Daniel Ellsberg's office as a way to get back at him for releasing the Pentagon Papers? Are there really people who listen to what he has to say and take it seriously?

[SirNitram]

Encouraging terrorism will not, actually, discredit you with some people.

Or with companies who sell ad time, apparently.

[Count Chocula]

SirNitram made note of Sotomayor's membership in La Raza; I heard also, on the way home tonight, that ex-Congressman Tom Tancredo (Republican) equated her membership in La Raza as membership in an extremist organization, because their unofficial motto is "Por La Raza todo, Fuera de La Raza nada", which translates "For the Race, everything, outside the Race, nothing".

Here's the problem. He's wrong. The "For the Race, ..." motto is attributed to MEChA, which is a radical Chicano/Chicana activist group that, at least when I lived in San Diego, advocated for a "reconquista" or reclaiming of the American Southwest under "Chicano," not US, rule and possession. La Raza is NOT MEChA; that's like equating the NAACP with the 1960s Black Panthers, or the ACLU with the Weather Underground.

Sonia Sotormayor is not a member of a radical group, as Tancredo asserted. Duh. You'd expect a guy who built his reputation on opposing illegal immigration to know the difference between the groups; his equating them was either stupidity or cupidity; I'm disinclined to believe he's that stupid, so this looks like a lame-ass smear effort by him.

[Dominus Atheos]

Wow, MediaMatters has been working overtime to cover all the bullshit the media is making up about this.

1st

CNN, Fox News, MSNBC misrepresent Sotomayor remark on role of appeals court justices


In reports on President Obama's choice of 2nd U.S. Circuit Court Judge Sonia Sotomayor as his nominee to replace retiring Supreme Court Justice David Souter, CNN, Fox News, and MSNBC all took comments Sotomayor made on the role of the circuit court during a February 25, 2005, Duke University School of Law forum out of context. Whereas media figures suggested that the comments showed that Sotomayor "believes court of appeals justices should make policy," context makes clear that Sotomayor was actually explaining the difference between district and appeals court justices.

In fact, in the comments the reporters were referring to, Sotomayor was not advocating making policy from the bench, but responding to a student who asked the panel to contrast the experiences of a district court clerkship and a circuit court clerkship. Sotomayor said:

The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time.

The Oxford Companion to the Supreme Court of the United States (2005) notes that federal appellate courts do in fact have a "policy making" role:

The courts of appeals have also gained prominence because of the substance of their caseload. For their first twenty five years, these courts dealt primarily with private law appeals. Diversity cases (suits between citizens of different states), bankruptcy, patent, and admiralty cases made up most of their work. However, as federal regulation increased, first during the Progressive Era, then during the New Deal, and finally during the 1960s and 1970s, the role of the courts of appeals changed as appeals from federal administrative agencies became a larger part of their caseload. Other developments that increased these courts' policy making importance were the increased scope of federal prosecutions, especially those dealing with civil rights, drugs, racketeering, and political corruption, increased private litigation over various types of discrimination; and litigation concerning aliens' attempts to gain political asylum. Also adding to their importance were their post 1954 use to oversee school desegregation and reform of state institutions such as prisons and mental hospitals, along with controversies like that over abortion.

Indeed, during the May 26 edition of MSNBC Live, NBC News chief justice correspondent Pete Williams said of Sotomayor's Duke comments: "Even some conservatives and followers of strict constructionism have said that she was only stating the obvious: that trial judges, district court judges, decide only the cases before them, and that appeals courts, because they are the above the other courts, do set policy; they do make precedent that governs the other courts. So it's either a very controversial statement or a fairly routine one, depending on your point of view."

As Media Matters for America documented, Fox News host Jane Skinner misrepresented Sotomayor's Duke comments in a similar way during the May 7 edition of Fox News' Happening Now.

From the 9 a.m. hour of the May 26 edition of Fox's America's Newsroom:

MEGYN KELLY (co-host): Apparently, we don't have this clip teed up -- we'll get it for you, and we'll play it in a minute. But what she said in this controversial clip, when she was speaking at Duke years ago, was that court of appeals justices -- that's where she sits now, the court of appeals; that's right underneath the Supreme Court -- make policy.

KARL ROVE (Fox News contributor): Right -- make law. Make law.

KELLY: She said, I know it's going to be controversial -- yeah, but -- no, she said make policy. We have this out? Let's play it. Let's watch.

SOTOMAYOR [video clip]: All of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK.

KELLY: Well, I mean, a lot of people think she was promoting it and she was advocating it --

ROVE: Sure. Absolutely.

KELLY: -- and she believes court of appeals justices should make policy or make law, and they would counter, "No, that's what we have elected representatives for."

ROVE: That's right.

KELLY: But Karl, that reflects -- I admire her honesty, because that actually does reflect what a lot of liberal jurists feel and their approach to judging.

ROVE: Yeah. The conference, I think, was organized, by [Erwin] Chemerinsky, who's now the dean of the University of California-Irvine law school, the founding dean out there, and he's got a very liberal view of what it is to be a judge, and she participated in this conference. Yeah, look, she's at least honest.

From the May 26 edition of CNN's American Morning:

JIM ACOSTA (CNN correspondent): Just a couple of quotes that are of interest that I think our viewers might want to know about. Our CNN political staff has put together some quotes from Judge Sotomayor from her past. Back in 2005 at Duke University, she was speaking at a panel discussion there, and she said that the appeals court is where policy is made and she even said during that discussion, "I know, I know I'm on tape. I shouldn't have said that," but that is what she believes. So conservatives, when they hear that, they are going to take issue with that statement. They believe that policy is not made on the bench; policy is made in the legislative branch of Congress, and that it is up to judges to decide on the law, not interpret or make law, and -- excuse me, not interpret but not to make law. And so Judge Sotomayor has made a couple of statements over the years that conservatives are going to have fun with.

Earlier before that 2005 panel discussion, she was at a different public setting in which she said a judge's gender and ethnicity should be taken into consideration when ruling on cases, and so conservatives are going to have some fun with that one as well.

From the 9 a.m. ET hour of the May 26 edition of CNN Newsroom:

ACOSTA: Not a big surprise -- Sotomayor has been mentioned throughout this whole process and had emerged as one of the leading contenders in the final days and hours of this selection process. And what Republicans are saying is what they have been saying about judicial nominees for the past several years, is they don't want to see what they call a judicial activist on the bench, somebody that they say would try to legislate, try to write law from the bench instead of interpreting or deciding on law as it's presented in a court setting or in a proceeding. And what Judge Sotomayor brings to the table here is very interesting, because she has made some comments in the past that conservatives can latch on to. Back in 2004 at Duke University, she said that the appeals court is where policy is made. Well, that's going to drive conservatives crazy. In an earlier public setting, she said that, you know, you should not, as a judge, disregard your ethnicity or gender. That, too, will drive conservatives crazy. But, on the other hand, what the White House will say, what their political allies will say on Capitol Hill is that, look, Judge Sotomayor was put on the bench originally by a Republican president, George H.W. Bush. And Republicans will say, "Oh, well, what about David Souter?" George H.W. Bush put David Souter on the bench.

But, you know, you have to keep in mind, not only are we talking about the first Hispanic judge on the Supreme Court -- justice on the Supreme Court, we're also talking about a woman, and there are a number of female Republican senators who might find it very hard to vote against judge Sotomayor. Olympia Snowe and Susan Collins, two very moderate Republicans from Maine, are going to be tempted to go along with the Democrats on this nomination. And even over the weekend, Jon Kyl, the number-two Republican in the Senate, was saying on one of the Sunday talk shows that they pretty much don't have the votes to block this nomination. And as Jeffrey Toobin and Alan Dershowitz have said on this network earlier this morning, there really aren't any red flags, any known red flags about this justice at this point that would warrant a huge fight on Capitol Hill.

HEIDI COLLINS (anchor): Yeah, yeah. But you did bring up something that I think we're going to hear a lot more about, those comments made in that panel discussion at Duke University. I have some of it here in front of me. To go further than what you said here about the court of appeals being where policy is made. She said, according to this, "Because it is the court of the appeals is where policy is made. I know this is on tape and I should never say that, because we don't make law, I know. I'm not promoting it and I'm not advocating it." It goes on to say a couple more things here. But I think we're going to hear a lot more about that.

ACOSTA: Yeah, that's right. But having said all of that, Mr. Obama was under a lot of pressure from liberals to put somebody on the bench that they could like, and, you know, somebody who has made those sort of pugnacious comments in public settings is going to be very appealing on the left side of the political spectrum. There are going to be those out there on the liberal side who have been somewhat disappointed with President Obama in the early months of his administration because of issues like Guantánamo, that they feel like President Obama is not exactly doing what he said out on the campaign trail that made him so appealing to liberals. And when they hear Judge Sotomayor making comments like that, they're thinking, "Well, maybe this is somebody who can go toe-to-toe with a Justice Scalia or Justice Roberts or Justice Alito." Two very, very conservative justices on the Supreme Court. And what liberals have been wanting is somebody who can go toe-to-toe with those sort of justices.

From the 10 a.m. ET hour of the May 26 edition of MSNBC Live:

CHRIS MATTHEWS (MSNBC's Hardball host): Let's go to some of the possible flash points. She's been quoted as saying the Supreme Court -- well, let's say this, the court of appeals right below it -- is, quote, "where policy is made." Let's start with that. Doesn't that rankle the original-intent folks who think the Constitution should be read literally and we shouldn't look for policy to be made on the bench?

SAVANNAH GUTHRIE (NBC News correspondent): We will hear that clip played over and over and over again in the coming weeks, and conservatives will point to it as evidence that Sotomayor is an activist judge, and that she was committing truth when she said that courts of appeal judges are those who set policy. Now, it should be said as soon as she said it, she kind of joked and said, "Well, I'm going to get in trouble for that." So look, they will say that means she's results-oriented. She's got other controversial statements in her background, where she talks about why being a Latina, one might come to a better conclusion than a white male judge, for example, but she also has, at the same time, said it's not just those qualities that will mean someone renders a good decision but that all of it informs the decision-making. But I think that's why -- to go back to where we started, Chris -- why some would regard this as a less safe pick, a little bit more controversial, because there are those statements out there.

[...]

WILLIAMS: Even some conservatives and followers of strict constructionism have said that she was only stating the obvious: that trial judges, district court judges, decide only the cases before them, and that appeals courts, because they are the above the other courts, do set policy; they do make precedent that governs the other courts. So it's either a very controversial statement or a fairly routine one, depending on your point of view.

From the Duke University panel discussion (beginning at approximately 40:00):

CARLOS LUCERO (judge, 10th U.S. Circuit Court of Appeals): I think that the district court clerk and the circuit court clerk really do substantially similar work, but the work is worlds apart. As a district court clerk, we're in the middle of a trial, a motion is filed during the litigation, the judge has to rule on it the next morning. He's taken it under advisement. And the clerk is asked to do a memo that night on the evidentiary issue involved. It's a quick but thorough memo. The next day, a clerk in some other city -- the judge may ask for a memo on a motion for summary judgment, and the motion is very fact-dependent. It requires going through a lot of the supporting affidavits in support of a motion, and the judge wants a summary of the evidentiary issues presented. She might want that tomorrow, or she may want it a week later, and the clerk has to prepare that memo. The circuit clerk, on the other hand, is going to look at the issue somewhat more abstractly -- how, in a context of 30 cases, will our ruling on this particular motion impact other cases coming before the court. And so, you can see that the focus immediately is somewhat more global in its application, whereas this -- the district court clerk's responsibility's kind of more case-dependent, fact-dependent to that particular case. If you're going into litigation, I think that the district court clerkships are far superior to the circuit court clerkships, in the sense that the circuit clerks' only exposure to the litigation is by reading the cold record. The district court clerk has been there, done that, watched the good lawyers, watched the great lawyers, watched the mediocre lawyers, and all the while during a year of exposure to the practices is learning how not to do it as well as how to do it. On the other hand, for the circuit court clerks, those clerks generally tend to gravitate a little more to the academy, a little bit more to the public policy side of things, and they too play an important role. And I am not here to judge as between the two -- between the two experiences; I think it really depends on what you want out of your career. If, in your heart of hearts, you really want to be that crack litigator, the crack prosecutor, the crack -- not the crack public defender, but the hotshot in any of those departments, I think that district court clerkship is right where I would go.

SOTOMAYOR: I -- from my answer earlier, I don't -- doing either is going to get you a whole lot, so you don't make a mistake in whatever choice you make. But there is a choice. The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time. You are jumping from one project to another at a million miles an hour on a given day. I explained to one on my friends that after a day in the district court, I actually didn't have a headache, I had a head strain. My brain in my first year felt that it had expanded past its capacity as a muscle to stretch. There was so much influx of information and new knowledge that I literally had a headache.

LUCERO: Don't hold her too responsible on physiological matters.

SOTOMAYOR: Yeah. At any rate, you jump from one emergency to another. By definition, you can't ever pay enough attention to anything, like you would like, and you have to move quickly. If you have a personality where you can do that, it's stimulating beyond belief. I have had law clerks when I was a district court judge for whom that process was just shattering because their ability to respond quickly was limited. You have to look within yourself and see if you can do it. Because if you can't, it can be a horrifically draining experience. The court of appeals is more contemplative, so you have more time to think and you have to think more deeply. But with it comes the requirement of thinking on levels, on multilevels, at a time. And some people are not suited to that either. Some people like a more direct, linear process, and the district court is better for that. As I said, there's no right and wrong, other than your choice. You're sort of looking at yourself seeing where your personality fits and thinking about your career choices and seeing which might be better. Now you could do both. So -- but that's not so easy either.

2

Fox's Kelly, ABC's Greenburg skew Sotomayor remark about "Latina," "white male" judges


Fox News host Megyn Kelly and ABC correspondent Jan Crawford Greenburg misrepresented a remark that Judge Sonia Sotomayor, President Obama's nominee to the Supreme Court, made in a speech delivered at the University of California, Berkeley, School of Law, claiming that she suggested, in Kelly's words, "that Latina judges are obviously better than white male judges." In fact, when Sotomayor asserted, "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," she was specifically discussing the importance of judicial diversity in determining race and sex discrimination cases. As Media Matters for America has noted, former Bush Justice Department lawyer John Yoo has similarly stressed that Supreme Court Justice Clarence Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

During the May 26 edition of Fox News' America's Newsroom, Kelly described Sotomayor's remarks as "reverse racism" and said it was "[l]ike she's saying that Latina judges are obviously better than white male judges." Kelly later added, "I've looked at the entire speech that she was offering to see if that was taken out of context, and I have to tell you ... it wasn't." Similarly, in a May 26 report on ABC's Good Morning America, Greenburg claimed that Sotomayor "suggest[ed] that a wise Latino may actually be a better judge than a white man, and that white men have had some attitude adjustments and reached moments of great enlightenment, but there's a long way to go."

Contrary to Kelly and Greenburg's claims, Sotomayor did not say or suggest that Latina or Latino judges are "better" than white male judges, but was instead talking specifically about "race and sex discrimination cases." From Sotomayor's speech delivered at the University of California, Berkeley, School of Law and published in 2002 in the Berkeley La Raza Law Journal:

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.

From the May 26 edition of ABC's Good Morning America:

GREENBURG: Judge Sotomayor, obviously, is a highly regarded federal appeals court judge. But some of Obama's legal advisers had been concerned that she was not as collegial on that federal appeals court bench, and therefore may be less effective once she gets on the high court in building some of those coalitions with the group of eight other colleagues.

But, Diane, from the beginning, this nomination was Sonia Sotomayor's to lose. President Obama's political advisers had urged him to tap her, to make this historic pick. They calculated that it would be the savviest move for this new president, hoping to avoid a big Supreme Court fight.

Republicans will have a very difficult time opposing her as this historic pick, although there will be a lot to work with in her record, including a pretty controversial speech that she gave back in late 2001, which she suggests that a wise Latino may actually be a better judge than a white man, and that white men have had some attitude adjustments and reached moments of great enlightenment, but there's a long way to go.

DIANE SAWYER (host): All right, let's go to Jon Karl, because on that front, as we were saying, every Republican has a pen and pencil out this morning. Let's go up to Capitol Hill. Jon, what are you hearing about the first move the Republicans plan to make, and what are they saying on the Democratic side about the ease -- or not -- of confirmation?

From the May 26 edition of Fox News' America's Newsroom:

KELLY: Your thoughts on this controversial quote that she offered up on Latina judges? This was Judge Sotomayor speaking back at the University of Berkeley Law School in 2001, and I'll read you what she said and ask if you are able to put this in perspective for us.

She says, quote, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion as a judge than a white male, who has not lived that life." You know, that sounds to a lot of people like reverse racism, basically. Like she's saying that Latina judges are obviously better than white male judges, and that that's her assumption, and people get worried about putting a person like that on the U.S. Supreme Court.

REP. JOSE SERRANO [D-NY]: Right. And like I said, we're gonna hang on everything she's ever said -- if she has said them. I think the key there is, "I would hope," just like I have said at times throughout my life that when you come with this background that I came, that I would hope I would be always true to believing when I legislate in Congress -- and I've been in Congress 20 years, and in the state Assembly 16 years before that -- that I would keep in mind that while I'm legislating for the whole country, I also have to keep in mind what it is that I bring to that legislation. My personal experience and how it is to fight yourself out of poverty. All she was saying is --

KELLY: But is there a role for that on the bench? It's different, some would argue, for you, because you're an elected lawmaker.

SERRANO: Well, there is a role in that you never forget who you are. I mean, she has made decisions based on what the law is and what the Constitution says. That's what she'll be doing.

[...]

KELLY: What I want to ask you about, Tim [O'Brien], is these prior statements, because as much of a moment as we may be having now watching this and just rooting for her as a human being, there are some problematic statements that she's made in the past that are gonna come up at these confirmation hearings. And the one we've been talking about is this one where she says -- and I want to get it right: "I would hope a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male."

And I -- now I've looked at the entire speech that she was offering to see if that was taken out of context, and I have to tell you, Tim, it wasn't. In fact, she goes on -- she says, "Justice O'Connor has often been cited" -- that was our first female justice -- "has often been cited as saying that a wise old man and a wise old woman will reach the same conclusion in deciding cases."

She says, "I'm not so sure I agree with that statement." And then she goes on to say that "people from different backgrounds will come to different decisions" and she said that "one must accept the proposition that a difference will be created by the presence of women and people of color on the bench and their personal experiences." Now, is that just a statement of fact, Tim, or is that in fact controversial?

3

Fox Nation baselessly claims Sotomayor "Wants to Ban Guns"


In a May 28 headline, The Fox Nation baselessly claimed that Supreme Court nominee Sonia Sotomayor "Wants to Ban Guns." The headline linked to a May 28 CNSNews.com article that made no mention of Sotomayor expressing or indicating a desire to "ban guns." Rather, CNS News reported that Sotomayor was part of a three-judge 2nd U.S. Circuit Court of Appeals panel that cited Supreme Court precedent in ruling that "the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments." As CNS News noted, in the case Maloney v. Cuomo, the Second Circuit "cited the 1886 Supreme Court case of Presser v. Illinois," which found that "the Second Amendment only restricted the federal government" -- not state governments.

As Media Matters for America has noted, media conservatives have previously engaged in similar fearmongering by claiming without basis that President Obama and House Speaker Nancy Pelosi (D-CA) want to "ban" or "confiscate" guns.

From The Fox Nation on May 28:

4

Myths and falsehoods surrounding the Sotomayor nomination


In covering the announcement by President Obama that he intends to nominate Judge Sonia Sotomayor to replace retiring Justice David Souter on the Supreme Court, the media have advanced numerous myths and falsehoods about Sotomayor. In some cases, the media assert the falsehoods themselves; in others, they report unchallenged the claims of others.

In addition to evaluating these claims on their merits, the media should also consistently report that conservatives were reportedly very clear about their intentions to oppose Obama's nominee, no matter who it was. Their attacks must be assessed in the context of their reported plans to use the confirmation process to "help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats"; "build the conservative movement"; provide "a massive teaching moment for America"; "prepare the great debate with a view toward Senate elections in 2010 and the presidency"; and "hurt conservative Democrats."

Media Matters for America has compiled a list of myths and falsehoods that have emerged or resurfaced since Sotomayor's nomination was first reported.

MYTH: Sotomayor advocated legislating from the bench

Media including The Wall Street Journal, USA Today, CNN, Fox News, and MSNBC have misrepresented Sotomayor's statement -- during a February 25, 2005, Duke University School of Law forum -- that the "court of appeals is where policy is made." These media outlets have advanced assertions that Sotomayor was advocating that judges make policy from the bench, or in the case of NBC's Matt Lauer and Chuck Todd, falsely characterized Sotomayor's comment themselves. But the context of her comments makes clear that she was simply explaining the difference between district courts and appeals courts after being asked about the differences between clerkships at the two levels, an explanation in line with federal appellate courts' "policy making" role described by the Oxford Companion to the Supreme Court of the United States (2005).

From Sotomayor's remarks:

SOTOMAYOR: The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time.

According to NBC News justice correspondent Pete Williams, "[E]ven some conservatives and followers of strict constructionism have said that [Sotomayor] was only stating the obvious: that trial judges, district court judges, decide only the cases before them, and that appeals courts, because they are the, you know, above the other courts, do set policy; they do make precedent that governs the other courts." Indeed, legal experts have stated that Sotomayor's comment is not controversial, as The Huffington Post and PolitiFact.com have noted. In the words of Hofstra University law professor Eric Freedman, Sotomayor's remark was "the absolute judicial equivalent of saying the sun rises each morning" and "thoroughly uncontroversial to anyone other than a determined demagogue."

MYTH: Sotomayor said, "Latina judges are obviously better than white male judges"

Media figures have misrepresented a remark that Sotomayor made in a speech published in 2002, claiming that she suggested, in the words of Fox News' Megyn Kelly, "that Latina judges are obviously better than white male judges." Further advancing the falsehood, numerous media figures have asserted that Sotomayor made a "racist statement." In fact, when Sotomayor asserted, "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," she was specifically discussing the importance of judicial diversity in determining race and sex discrimination cases. Indeed, as Media Matters has noted, former Bush Justice Department lawyer John Yoo has similarly stressed that Supreme Court Justice Clarence Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

MYTH: Sotomayor's Supreme Court reversal rate is "high"

In a May 27 article headlined "Sotomayor reversed 60% by high court," The Washington Times uncritically quoted Conservative Women for America president Wendy Wright saying that Sotomayor's reversals -- which the Times reported as three of five cases, or 60 percent -- were "high." Similarly, on May 26, Congressional Quarterly Today uncritically quoted (subscription required) Wendy Long, counsel to the Judicial Confirmation Network, claiming that Sotomayor "has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court." In fact, contrary to the claim that a reversal rate of 60 percent is "high," data compiled by SCOTUSblog since 2004 show that the Supreme Court has reversed more than 60 percent of the federal appeals court cases it considered each year.

MYTH: Liberal judges like Sotomayor are "activist"

CNN's Gloria Borger and Bill Schneider have uncritically repeated Republican claims that Sotomayor is -- in Schneider's words -- a "liberal activist," and in doing so have also advanced the baseless conservative claim that judicial activism is solely a "liberal" practice. But at least two studies -- looking at two different sets of criteria -- have found that the most "conservative" Supreme Court justices have been among the biggest judicial activists.

A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder indicated that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the most frequent practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress. Indeed, Gewirtz and Golder found that Thomas "was the most inclined" to do so, "voting to invalidate 65.63 percent of those laws." Additionally, a recently published study by Cass R. Sunstein (recently named by Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism -- the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court's "conservative" justices were the most likely to engage in "judicial activism," while the "liberal" justices were most likely to exercise "judicial restraint."

Moreover, according to Politico's Jeanne Cummings, "Sotomayor's history suggests the very sort of judicial restraint that conservatives clamor for in a nominee." She added:

Whatever her personal ideology, she ruled against an abortion-rights group challenging [President] Bush's policy of banning overseas groups that take federal funds from conducting abortions. In another case, she ruled in favor of abortion protesters.

"She applied the law even-handedly and come out with the right decision," said Bruce Hausknecht, a judicial analyst for Focus on the Family Action, a large and influential voice on conservative social issues.

Sotomayor's rulings on religious liberty issues also have pleased the conservative community.

"It would have been a lot easier to communicate to the base why Judge Wood would not have made a good nominee," said Hausknecht. "With Sotomayor, we have to take a wait-and-see attitude."

MYTH: Sotomayor was "oft on New Jersey [c]orruption"

In a May 26 post to his National Review Online "the campaign spot" blog, Jim Geraghty misleadingly suggested that as a U.S. district judge, Sotomayor was "oft on New Jersey [c]orruption" due to the sentencing and financial penalty she issued in 1995 to Joseph C. Salema in a municipal bond kickback scheme. Geraghty cited the book The Soprano State: New Jersey's Culture of Corruption, by Bob Ingle and Sandy McClure, who wrote that "Salema could have spent up to 10 years behind bars" and that Sotomayor "instead sentenced him to six months in a halfway house and six months of home detention, fined him $10,000 and gave him 1400 hours of community service." Geraghty commented: "A $10,000 fine to someone who pleads guilty to a federal charge of sharing in more than $200,000 in kickbacks. Boy, that will teach him!" But in declaring Sotomayor "oft," Geraghty ignored the fact that prosecutors reportedly sought a prison term of only one year and that Salema reportedly paid "a full restitution of $342,000" in a settlement with the Securities and Exchange Commission (SEC).

MYTH: New Haven firefighters case shows Sotomayor is an "activist"

The media have advanced conservatives' claim that Sotomayor's position in the New Haven firefighters case, Ricci v. DeStefano, shows that she is an "activist" judge. For example, a May 26 Congressional Quarterly Today article quoted Long as saying that Sotomayor "has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court" and reported that Long "pointed to Sotomayor's participation in a 2nd Circuit discrimination case, Ricci v. DeStefano, in which a group of white New Haven, Conn., firefighters alleged they were unfairly denied promotions." In fact, Sotomayor agreed with four of her 2nd U.S. Circuit Court of Appeals colleagues that precedent compelled the decision in the case. Moreover, contrary to Long's suggestion that Sotomayor's decision shows that she is "far more of a liberal activist than even the current liberal activist Supreme Court," Souter -- whom Sotomayor would replace -- reflected an understanding of the situation faced by the city of New Haven, asking counsel for the firefighters: "Why isn't the most reasonable reading of this set of facts a reading which is consistent with giving the city an opportunity, assuming good faith, to start again? ... sn't that the only way to avoid the damned if you do, damned if you don't situation?"

MYTH: Sotomayor lacks the intellect to be an effective justice

Several media figures have repeated the charge that Sotomayor lacks the intellect to be an effective Supreme Court justice, often quoting only anonymous sources or no sources at all. For instance, CNN's John King said while reporting on Obama's nomination announcement, "ome ... are voicing surprise at this because they view her as a highly competent and a highly qualified judge, but they do not believe that she was the most, shall we say, of the intellectual firebrands that the president had on his list, those who could go up against a [Antonin] Scalia, or an [Samuel] Alito on the court in the arguments." The Washington Post's Dana Milbank similarly stated: "As a legal mind, Sotomayor is described in portraits as competent, but no Louis Brandeis." However, Media Matters has identified law scholars and legal professionals who worked with Sotomayor who have described her as "highly intelligent" and even "brilliant."

As Tom Goldstein noted on SCOTUSblog, "Opponents' first claim -- likely stated obliquely and only on background -- will be that Judge Sotomayor is not smart enough for the job" because "[t]he public expects Supreme Court Justices to be brilliant." Goldstein added: "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." Goldstein is a partner at Akin Gump Straus Hauer & Feldmann LLP and "co-head" of the firm's "litigation and Supreme Court practices" who "teaches Supreme Court Litigation at both Stanford and Harvard Law Schools."

MYTH: Sotomayor is "domineering" and "a bit of a bully"

Echoing a May 4 New Republic article by legal affairs editor Jeffrey Rosen, Fox News host Bill Hemmer and Supreme Court reporter Shannon Bream relied on anonymous sources that reportedly characterized Sotomayor as "domineering," sometimes "bogged down in marginal details," and "a bit of a bully." A CNN.com article similarly referenced "perceived ... concerns about her temperament." However, several of Rosen's sources were unnamed "former law clerks for other judges on the Second Circuit." Beyond allowing sources who are not identified to throw darts at Sotomayor, such citations of law clerks is problematic for a different reason, according to American University law professor Darren Hutchinson, who wrote, "[T]he use of clerks to determine whether a judge should receive a Supreme Court nomination is extremely problematic," because "[m]ost clerks have just graduated from law school, have never tried a case or practiced law, and do not have sufficient experience or knowledge of the law to make an informed assessment of a judge."

MYTH: "Empathy" is code for "liberal activist"

Media figures and outlets have focused on the purported controversy over Obama's May 1 statement that he would seek a replacement for Souter who demonstrates the quality of "empathy" and conservatives' criticism that Sotomayor, in the words of Long, "applies her feelings ... when deciding cases." Several media figures and outlets, including Fox News' Special Report and The Washington Post, have falsely suggested that Obama said that he will seek a Supreme Court nominee who demonstrates empathy rather than a commitment to follow the law. In fact, in the statement in question, Obama said that his nominee will demonstrate both. Other media have stated or advanced the claim that, in the words of a May 4 National Review editorial, "[e]mpathy is simply a codeword for an inclination toward liberal activism." But these media figures and outlets have ignored conservatives' history of stressing the importance of judges' possessing empathy or compassion.

Indeed, during his Supreme Court confirmation hearings, responding to Sen. Herb Kohl's (D-WI) question, "I'd like to ask you why you want this job?" Thomas stated in part: "I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does." Moreover, then-President George H.W. Bush cited Thomas' "great empathy" in his remarks announcing that he was nominating Thomas to serve on the Supreme Court. Sen. Kit Bond (R-MO) similarly stated: "Though his skills as a lawyer and a judge are obvious, they are not, in my view, the only reason that this committee should vote to approve Judge Thomas's nomination. Just as important is his compassion and understanding of the impact that the Supreme Court has on the lives of average Americans." In his review of Thomas' 2007 memoir, My Grandfather's Son (HarperCollins), former Bush administration lawyer John Yoo touted the unique perspective that he said Thomas brings to the bench. Yoo wrote that Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

Additionally, several Republican then-senators, including Strom Thurmond (SC), Al D'Amato (NY), and Mike DeWine (OH), cited compassion as a qualification for judicial confirmation. For instance, during the confirmation hearings for Justice Ruth Bader Ginsburg, Thurmond stated that "compassion" was one of the "special qualifications I believe an individual should possess to serve on the Supreme Court," adding that "[w]hile a nominee must be firm in his or her decisions, they should show mercy when appropriate." Similarly, during the confirmation hearings for Justice Stephen Breyer, Thurmond said "compassion" was among "the special criteria which I believe an individual must possess to serve on the Supreme Court."

[Raxmei]

It's apparently way too hard to keep groups with foreign-sounding names straight. Sotomayor is a member of the National Council of La Raza, a hispanic advocacy organization. La Raza is just another term for people of Mexican and sometimes other hispanic descent. Various organizations have the words "La Raza" in their name, but lumping them all together would be as big a mistake as conflating the United Negro College Fund with the Black Panthers.