The Sotomayor Pick: Bad But Could Have Been Worse

Sonia Sotamayor

In picking Sonia Sotomayor to fill the Souter seat, Obama knows what he is getting:  a reliable liberal vote and someone who will probably be easily confirmed.  That she is reliably liberal is obvious from her rulings.  That she will be easily confirmed is clear from the fact that she is a Latina and the Republicans do not wish to offend this powerful voting block.  She is not shy about playing the race card: ” 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.”  This was in a lecture given by the judge in 2001, and the full text of the speech is here.  Needless to say any wasp male judge who said the reverse would never have been nominated, and also needless to say Judge Sotomayor will pay absolutely no price for claiming that she is a better judge because of her ethnic background and her sex.  Hattip to the Volokh Conspiracy.

The White House has sent out talking points to Latino law professors, and, courtesy of Powerline, they are here for you to read.

Judge Sotomayor was raised Catholic but there is some indication that she no longer practices the Faith.  Father Z, as always ever on the job, discusses the Catholic aspect of the appointment here.  The give away line from the White House:  “Judge Sotomayor was raised as a Catholic and attends church for family celebrations and other important events.”  Father Z views this choice as partially an attempt by the Obama White House to divide Catholics.  “I am pretty sure that, among other motives, this is also part of a conscious agenda. This White House, and those who seek to be its satraps, are doing their best to subvert institutions and some high profile public Catholic figures in order to drive a wedge between different groups of Catholics.  They especially want to cleave off the strong Catholic bishops from the rest of the squishy Americanized Church.  They do so by seeming to embrace an important but logically secondary set of common objectives so as to neutralize the deeper foundations of a true Catholic influence in the public square.”

Here, once again courtesy of Powerline, are comments about Sotomayor from attorneys who have appeared in front of her.  The short version is that she is smart, but not brilliant, and something of a tyrant on the bench.  I am familiar with that type of jurist.  They can be trying but not so nearly as trying as a jerk in a black robe who is stupid to boot.  I hasten to add that all judges I appear before are very nice, brilliant individuals.  (Just in case any of you Honorable guys and gals end up reading this!)

So Obama will end up with a liberal justice who dabbles, to say the least, in identity politics.  How could it have been worse from my perspective, that of a pro-life conservative?

1.  The choice could have been Diane Wood, a judge of the Seventh Circuit Court of Appeals, my stomping grounds.  Judge Wood is quite simply a pro-abortion fanatic.  I was afraid that Obama would give her the nod and I was relieved that she wasn’t picked.

2.  We have the case of Center for Reproductive Law and Policy v. Bush, 304 F3d 183 (2002 2nd Cir.)  where Judge Sotomayor wrote the opinion affirming the dismissal of the suit brought by the Plaintiff attempting to block the “Mexico City” policy of the Bush administration which banned funds from international organizations which performed abortions or promoted abortions.  The text of the decision is here.  The decision is a good workmanlike application of the relevant law and case law.  Do not read too much into it.  I have absolutely no doubt that Sotomayor will be a predictable vote to uphold Roe.  However, this decision does indicate to me that where the law is clear Sotomayor may be inclined to follow it rather than to ignore it in favor of her own preferences.  On the other hand there is a world of difference between being a federal appellate judge and being a member of the Supreme Court, where justices often view themselves quite differently than when they were laboring in lower judicial vinyards.

3.  She is not brilliant and there is some evidence of a brittle personality on the bench.  This might indicate a limited ability to persuade other Justices to her point of view.  It also perhaps indicates that she might be cross-grained enough that perhaps she will show some independence which might unpleasantly surprise some of her current supporters in at least a few cases. 

These of course are just preliminary thoughts.  Judge Sotomayor has been on the federal bench since 1992 and there are lots of cases to wade through before definite judgments can be made about her judicial philosophy.

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19 Responses to The Sotomayor Pick: Bad But Could Have Been Worse

  1. Gerard E. says:

    The Richness of Her Experience quote could come up. No doubt the final judiclal resolution of Prop 8 may be this simple- It’s Your Case Ms. S. And You’d Better Be With the Other 3 Libs Pulling Anthony Kennedy Toward You Nudge Nudge Wink Wink. But pull up Fred Barnes’ piece at Weekly Standard- outling the minefield she’ll have to cross. And no, it doesn’t include How Would You Vote On Roe. Barnes mentions one name who could be her Anita Hill- Mr. Frank Ricci. Occupation- Firefighter, New Haven Fire Dept. Rejected for promotion because of color of skin not character content. Ms. S. was in the line of judges who ruled against his promotion. How he testifies in the Senate Judiciary hearing will have a lot to do with whether Ms. S. is fitted for her Supreme robe. Still think it will be 62-38 in the full Senate for her. But more qualified candidates have slipped fallen and were unable to get up- Bork, Carswell, others. So the opera goes on and the obese female hasn’t soloed for Sonia yet.

  2. Matt McDonald says:

    Good assessment! All in all I think her nomination while a bad choice, will bring about some good. The things you mentioned, but also, her open admission of judicial activism and outright racist decision in the Frank Ricci case will be not ring well with the American people who prefer that law is made by their elected representatives and that there be a modicum of fairness. In the long run this will be a failure for Obama I think.

  3. There is a Sotomayor quote floating around:

    “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.”

    and when I heard it I admit I was troubled at first (imagine the outcry if a white male said the reverse?)– but Rod Dreher (CrunchyCon) places it in proper context.

    I agree, the case of reverse-discrimination with the firemen will be troublesome.

  4. Needless to say any wasp male judge who said the reverse would never have been nominated, and also needless to say Judge Sotomayor will pay absolutely no price for claiming that she is a better judge because of her ethnic background and her sex.

    …but Rod Dreher (CrunchyCon) places it in proper context.

    Yes, the context of the speech is important. Good to see you recognize that. But there is also a historical context at work which makes the words people say mean different things when people of different backgrounds say them. This is why the tired argument of Donald (“what if a white guy said that?!?”) is absolute nonsense.

    Donald – Admit it. You should have given your hat-tip to Rush Limbaugh: http://politicalticker.blogs.cnn.com/2009/05/27/limbaugh-slams-sotomayor-reverse-racist-2/

  5. Rick Garnett says:

    For what it’s worth, she has a pretty good record on religious-liberty and “religion in the public square” cases. I have a link at “Mirror of Justice”, to a more detailed analysis.

  6. cminor says:

    Re the Quote of the Day, it’s been said that self-praise is no praise. I’ve heard it said Sotomayor has an inflated opinion of herself, and can believe it if the quote is typical.

    I find Donald’s item #3 intriguing. I have heard Sotomayor has a reputation for being domineering on the bench and was wondering if this might lead to her being taken down a few pegs once she got to the SCOTUS. I understand Justice Roberts runs a tight ship.

  7. Donald R. McClarey says:

    Catholic Anarchist, statements that assert that someone is better at a job simply because of their ethnicity and sex are repugnant from any source. I linked to the full text of Sotomayor’s speech where the remark is made, so readers can draw their own conclusions.

  8. Phillip says:

    Michael,

    True is true no matter who says it.

  9. Gabriel Austin says:

    I seem to remember reading that Judge Sotomayor would rely more upon the law than on her own feelings [“empathy”].
    This raises the interesting imaginary situation where, for example, slavery was legal.
    The parallel with abortion, or with eugenics, is clear.

  10. Catholic Anarchist, statements that assert that someone is better at a job simply because of their ethnicity and sex are repugnant from any source.

    How dare you say the Church’s position on women’s ordination is “repugnant”!

  11. Donald R. McClarey says:

    Clever rejoinder Catholic Anarchist. Of course in regard to the priesthood the Church teaches that God mandates a male only priesthood. I do not presume to question God regarding His rules.

  12. I do not presume to question God regarding His rules.

    But you presume to equate the Church with God.

    So you will not question “God,” but you are perfectly comfortable calling God’s mandate “repugnant.” A pious fellow you are!

  13. Donald R. McClarey says:

    The Church is the bride of Christ Catholic Anarchist. When it comes to an all male priesthood you of course are not debating with me but with Ordinatio Sacerdotalis.

    http://www.vatican.va/holy_father/john_paul_ii/apost_letters/documents/hf_jp-ii_apl_22051994_ordinatio-sacerdotalis_en.html

    “Although the teaching that priestly ordination is to be reserved to men alone has been preserved by the constant and universal Tradition of the Church and firmly taught by the Magisterium in its more recent documents, at the present time in some places it is nonetheless considered still open to debate, or the Church’s judgment that women are not to be admitted to ordination is considered to have a merely disciplinary force.

    Wherefore, in order that all doubt may be removed regarding a matter of great importance, a matter which pertains to the Church’s divine constitution itself, in virtue of my ministry of confirming the brethren (cf. Lk 22:32) I declare that the Church has no authority whatsoever to confer priestly ordination on women and that this judgment is to be definitively held by all the Church’s faithful.”

    As is so often the case Catholic Anarchist, you simply refuse to believe what the Church teaches.

  14. Tito Edwards says:

    Catholic Anarchist,

    You really aren’t a Catholic are you.

  15. How dare you say the Church’s position on women’s ordination is “repugnant”!

    Despite Michael’s juvenile attempt at a “gotcha”, he fails here (as usual) by either not understanding or misrepresenting the facts under discussion. The Church does not assert that men are “better” at being priests than women, but rather that the Church is not able to ordain women. It’s not a question of function, but of nature.

    That said, I think the phrase “Catholic Anarchist, statements that assert that someone is better at a job simply because of their ethnicity and sex are repugnant from any source.” could probably have been phrased a little more precisely. There are at the very least some jobs which clearly one sex will, on average, be much more physically or temperamentally well suited to than the other. However, I think that Don pretty clearly meant that asserting that someone’s race or sex gave him/her a special access to truth, wisdom, or skill (and thus the ability to determine those as a judge or in any other profession) was repugnant, and that is arguably the case.

  16. Donald R. McClarey says:

    Agreed Darwin. Men will usually have greater physical strength than most women in my eperience. In my experience most women are usually better at counseling than most men. However in all of these types of cases there are criteria other than sex that can be used in determining ability in a specific field.

  17. As is so often the case Catholic Anarchist, you simply refuse to believe what the Church teaches.

    I say that I hope that teaching changes. You, on the other hand, call it “repugnant!”

  18. Gabriel Austin says:

    The country survived Warren Burger. It will likely survive Judge Sotomayor.

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