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38 Responses

  1. Amanda in the South Bay
    Amanda in the South Bay May 26, 2009 at 11:41 am |

    I thought she was appointed a federal district judge under GHW Bush?

  2. norbizness
    norbizness May 26, 2009 at 11:56 am |

    The composition is no different, obviously. Whether one is a centrist or a progressive or somebody who applies the law as derived from old episodes of Gunsmoke doesn’t matter. There are four reactionary members of the court (Scalia, Alito, Roberts, and Thomas), and occasionally they are joined by center-reactionary Anthony Kennedy to render a shitty court decision. Only when Scalia retires (he’s the oldest of the five) and replaced by somebody non-reactionary would the court become Kennedy-proof.

  3. norbizness
    norbizness May 26, 2009 at 12:00 pm |

    I also assume that Stevens will retire sometime in the Obama administration, meaning that the next pick will also be just treading water at best. Scalia would be 80 at the end of a hypothetical the second Obama Administration, nine years younger than Stevens is now.

  4. William
    William May 26, 2009 at 12:39 pm |

    What exactly is good about her? I mean, not to throw a wet blanket over the party, but she’s bad on established first amendment rights (Doninger v. Niehoff), questionable on the 4th amendment (US v. Howard), and doesn’t understand how the 14th amendment works (Maloney v. Cuomo). This woman is a nightmare waiting to happen.

  5. ripley
    ripley May 26, 2009 at 1:19 pm |

    William, this blog and others have already talked about this, try here for a start
    http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202430720254&slreturn=1

  6. Jill
    Jill May 26, 2009 at 1:50 pm | *

    She’s very moderate, and wouldn’t have been my first pick, or probably even my 10th pick. I agree with William that she was wrong in the Howard and Doninger decisions (although I think Doninger is more egregious than Howard).

    But those are two decisions. She isn’t just “not as bad” as Scalia, Roberts, etc — she is much, much better. She’s very plaintiff-friendly in discrimination cases, which is good, especially considering recent SCOTUS decisions. As Holly said, she thinks that the Voting Rights Act should apply when evaluating felon disenfranchisement. She stood up for First Amendment rights in a case where the protected speech/expression was bigoted and awful. She supported the right of an inmate to bring a Bivens action against a private corporation for redress of constitutional violations (a position that was narrowly reversed by the Supreme Court in an opinion written by Rehnquist). She’s really good on disability issues.

    She’s not great on privacy issues. I did not like the conclusion of Center for Reproductive Law and Policy v. Bush, but I don’t think it was necessarily a bad decision. She may be pro-life, who knows (I’m sure the confirmation proceedings will press her on that). Like I said, very far from my first choice.

    But she is a left-leaning moderate. She is very, very smart, incisive and thorough. She’s highly qualified and experienced. And she’s replacing a solid moderate on the court. I think she’s a good pick. Let’s also keep in mind that if her confirmation fails, it will be because conservatives succeed in branding her a “liberal activist judge,” not because she’s unqualified and certainly not because she’s too deferential to police power. That means that Obama’s next pick would likely be even more middling.

    SCOTUSblog has a lot more on individual decisions here:

    http://www.scotusblog.com/wp/judge-sotomayors-appellate-opinions-in-civil-cases/

  7. Winter Bledsoe
    Winter Bledsoe May 26, 2009 at 2:04 pm |

    **We live in a time when life experiences are held to be the most significant indicators of our opinions and political beliefs. In really predictable and obvious ways, too.**

    Those qualities are the worst in us! Thinking, reacting, internal dialogs from preconceived notions based on your own human experience-all very human things we, being human, can seldom get away from. On the good side of the scale these human traits make us a colorful and textured world allowing people to learn much from each other. Of course reactions based on our own experiences can go a much different way- as history clearly shows. Still, we cannot get away from our own humanness. There is one place though where we can hope that 7 gifted and wise people can supersede those human failings and rule by one and only one thing -the law. Not the law the way they see it but the law the way it is written. If there is one place where a person should always shed their background, their beliefs and their own human hurts and pains it should be the Supreme Court. The highest court in the land MUST be blind. It would be impossible to represent every ‘type’ of person with a judge that understands their specific background. You would never have enough, it would never be ‘fair’ and therefore, not the way to rule. What would you say, if by some horrible wrong place/time circumstances, you where on the WRONG side of who your judge ‘identifies with’ I wonder how you would hope that judge ruled then.

  8. chava
    chava May 26, 2009 at 2:19 pm |

    I’m hardly a lawyer, but I recall that justices tend to move more towards the left the longer they are on the court. Perhaps that will happen with her. On the whole, she is certainly an impressive legal mind. It seems as if she has worked relatively little with either First Amendment issues or abortion rights issues (going off the blog Jill posted). However, not all of her 1st Amendment decisions look bad to me at all, and she seems good on labor, disability issues, and voting rights.

    William, I’m not sure why she “doesn’t understand how the 14th Amendment works” based off that case you cited. If anything, wouldn’t you be talking about the 2nd there?

    In any case–Obama ran as a centrist. I think a lot of us hoped he was just covering his behind to get the undecided votes, but it looks like he really does intend to govern as a centrist liberal. So in that way, Sotomayor is fairly consistent with his idealology.

  9. Melissa
    Melissa May 26, 2009 at 3:15 pm |

    Anyone else think she gets confirmed relatively easily? In this day and age it is impossible to have a confirmation hearing without some ugliness and grandstanding. But she has been approved twice before by many of the same Democrats and Republicans sitting on the Judiciary Committee. She seems qualified and pretty uncontroversial in terms of her judicial record. Unless she has some big skeletons in her closet I think she cruises.

  10. Jill
    Jill May 26, 2009 at 3:15 pm | *

    Oh Winter, if only it worked like that…

    I will just quote the wonderful Laurence Tribe from 2005, during the Alito confirmation proceedings:

    “Alito seems as decent and fair-minded as he is bright, and I don’t doubt his sincerity in separating the results he might like to see from those he concludes the law requires. I simply make a plea to quit pretending that law, life, and an individual’s unarticulated assumptions about both can be entirely separated when assessing what someone’s addition to the Supreme Court would mean for all of us well into the 21st century. . . . Slogans about just following “settled law” as though it were a computer application, sticking to the text’s “original meaning” as if that were a matter of scientific fact, never “legislating from the bench” as if judges ever think they’re doing that, remaining within an imagined “mainstream,” and by all means respecting precedent . . . offer precious little insight into how a justice might actually approach [future controversies over liberty, equality, personal privacy, and government power].”

  11. Jill
    Jill May 26, 2009 at 3:32 pm | *

    Or, to quote Barack Obama:

    I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

    I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.

    Hang out in court rooms long enough — or, heck, take a step back from the hyper-academic law school environment — and you’ll see pretty clearly that valuing consistency and literal interpretation over justice and fundamental fairness is incredibly problematic. “The Law” is not some written set of rules handed down by God; it is the work of human beings, interpreted by human beings. So while it’s easy to argue that “The highest court in the land MUST be blind,” the highest court is populated by individuals with what Tribe calls “unarticulated assumptions” that can’t be separated from their legal work. It just so happens that in our society, we default to the white, straight, wealthy male experience, and so most of the current SCOTUS justices can claim that their identities don’t actually influence their work. Of course they do.

  12. Circadian Tedium
    Circadian Tedium May 26, 2009 at 4:05 pm |

    She may just be a “political pinata”.

    And I find this statement, “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” a bit surprising.

  13. eastsidekate
    eastsidekate May 26, 2009 at 4:08 pm |

    I can’t help but remind folks of Earl Warren, who was supposed to be a safely right-of-center justice, but ended up crafting some decisions that were really progressive for their time. It can be anywhere from difficult to flat-out impossible to predict what type of justice some nominees will make. Certainly, there are clues. However, I’m pretty disgusted with the MSM’s sense that Sotomayor being Latina is all we need to know to predict her future rulings.

  14. William
    William May 26, 2009 at 4:19 pm |

    William, I’m not sure why she “doesn’t understand how the 14th Amendment works” based off that case you cited. If anything, wouldn’t you be talking about the 2nd there?

    The 14th incorporates (I believe thats the right term) the rights in the constitution against the states. Sotomayor’s ruling was that the 2nd amendment didn’t apply to the states, only to the federal government. The logic behind that goes to some terrifying places, is contrary to the 14th, and simply isn’t backed up by precedent. A state can’t violate the constitutional rights of it’s citizens (Nebraska can’t make an official religion or hold people without trial, for example) because the 14th demands that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

    What bothers me isn’t so much that it was a 2nd amendment case (we’ll get incorporation along the same margin we got Heller, so Sotomayor doesn’t really matter), but that the logic used by Sotomayor doesn’t leave too many pleasant options. Either she doesn’t believe Constitutional restrictions apply to the states or she is willing to pick and choose which rights apply based on some other consideration. Both options are outright dangerous. Given that some of the rest of her record is spotty and seems to revolve less around the facts than the people involved, I worry that she’s going to essentially end up the Left’s answer to Scalia: a political animal that makes decisions based on political concerns and finds some argument to justify them after the fact.

  15. chava
    chava May 26, 2009 at 4:24 pm |

    @ Circadian Tedium:

    The quote in context is here.

    I think taking that particular one out of context is, to say the least, problematic.

  16. non sequitur
    non sequitur May 26, 2009 at 4:34 pm |

    I’m not a lawyer and may be wrong about this, but I believe the incorporation doctrine says that each individual amendment (and possibly each individual righ listed in each amendment?) must be incorporated one at a time, by specific SC rulings. The 2nd Amendment wasn’t incorporated until very recently (2008?), and then it was a ruling involving the District of Columbia, so some argue it still hasn’t been incorporated.

    But in any case, my understanding is that Sotomayor’s ruling treating the 2nd Amendment as unincorporated in 2003 is wholly uncontroversial.

  17. Melissa
    Melissa May 26, 2009 at 4:38 pm |

    William, the 14th amendment does NOT incorporate all the amendments to the states. It could be argued that it should, but since the 19th century the Supreme Court has gone through selective incorporation. Maybe you are arguing that this is an incorrect course, but Sotormayer is in line with over 100 years of Supreme Court precedent in following selective incorporation. Only one circuit incorporated the 2nd amendment to the states and the Supreme Court hasn’t had a chance to pass judgment on that yet.

  18. Bitter Scribe
    Bitter Scribe May 26, 2009 at 4:45 pm |

    There will be plenty of overblown rhetoric about her, but what really matters is whether the Republicans feel strongly enough about stopping her to mount a filibuster. My guess is, they won’t.

  19. Quick Hit: Sonia Sotomayor nominated for Supreme Court « The Gender Blender Blog

    [...] From Feministe: Sonia Sotomayor nominated for the Supreme Court [...]

  20. Ismone
    Ismone May 26, 2009 at 7:11 pm |

    William,

    What Melissa said. 2nd amendment is not incorporated.

  21. William
    William May 26, 2009 at 8:01 pm |

    I was under the impression that incorporation was automatic (which, logically, seems to be what the 14th actually says and without it would pretty much render the Constitution as a series of guidelines rather than rights) but it seems I’m wrong. I’d still argue that some of the other red flags make Sotomayor a worrying choice, arguing that the government has a responsibility to instill respect for authority at the expense of freedom of expression is kind of a deal breaker for me, but I’ll admit that I was wrong on the incorporation thing.

    On a side note, out of curiosity, does anyone here with a better knowledge of the law than I know of any explicit Constitutional rights which the court didn’t incorporate?

  22. Rebecca
    Rebecca May 26, 2009 at 8:28 pm |

    William: Second, Third, right to indictment by grand jury, right to jury trial in civil cases, none have been incorporated by SCOTUS.

    (No, it’s not automatic – it probably should be, but it’s taken a lot of specific cases for specific provisions of the Bill of Rights.)

  23. Cedar
    Cedar May 26, 2009 at 9:30 pm |

    I’m shocked that I’m the first person to comment on this.

    She doesn’t understand how the 14th amendment works (Maloney v. Cuomo)?

    Are you kidding me? What law degree do you have to pronounce that a justice of her standing “doesn’t understand” basic facts of the constitution? White Male, esquire?

    Saying she has bad politics, fine. You have a difference of opinion. But her competence is beyond repute, and you repeating this right-wing “she’s stupid” meme that Holly was even talking about in this very post is nothing but oppressive bullshit.

  24. teatime
    teatime May 26, 2009 at 10:03 pm |

    It is not that she doesn’t understand the 14th or any other amendment, she chooses to make her decisions based on feelings not law. Honestly who cares what race or what sex a person is, just interpret the law – that’s all we ask. There is no room on the court for anyone who is biased or sympathetic toward certain groups or causes.

  25. chukmaty
    chukmaty May 26, 2009 at 10:30 pm |

    It is too bad that legitimate criticism of this pick will be brushed off as veiled racism. Ultimately, this coming from a conservative, I doubt the GOP will waste the political capital they are saving to put single payer health care out of business on a Judicial pick that will go through no matter when we do. Question her intensely on originalism, put it to vote, vote no, concede this one and move on. While I would never expect her to be Borked or or have an intern come out of nowhere claiming she made pubic hair jokes, I think the GOP will hardly make a push to have her rejected.

  26. Rachel
    Rachel May 26, 2009 at 11:53 pm |

    Cosign what Cedar said. Jesus tapdancing christ.

  27. Kristen J.
    Kristen J. May 27, 2009 at 6:27 am |

    There is no room on the court for anyone who is biased or sympathetic toward certain groups or causes.

    Goddess forbid that someone give a shit about other human beings. Or did you miss the idea that the purpose of the courts is to protect the minority from the tyranny of the majority?

  28. piny
    piny May 27, 2009 at 8:54 am |

    There is no room on the court for anyone who is biased or sympathetic toward certain groups or causes.

    Goddess forbid that someone give a shit about other human beings. Or did you miss the idea that the purpose of the courts is to protect the minority from the tyranny of the majority?

    Kristen, go easy. Teatime has obviously stumbled into the wormhole linking this dimension and Bizarro Earth.

    Holly just wrote a whole long post explaining this distinction, but I really don’t think this is the philosophical principle at issue. People, being people, tend to view the world in light of their own experiences. It’s possible–and professionally necessary for most attorneys and justices–to carefully study circumstances that have never applied to you personally, but it’s not quite the same thing as first-hand experience. We solve this problem by making sure that our deciding pool is diverse. If bias has no place in these decisions, that should happen automatically anyway, right?

  29. chava
    chava May 27, 2009 at 9:21 am |

    I don’t understand the panic over her “non-objectivity” at all. She made a comment at a speech for young Latino and Latina lawyers, in which she supported the experiences of their group over other groups. For heaven’s sake, she also said that she liked pig ears and intenstines in her speech.

    The second comment people are flipping out about, the “courts make policy” one? I watched the video, and it very much seemed like a “look, this is how it is, I”m not advocating it, but this is reality.”

    Anyway, I think it is easier to be “objective” when you haven’t seen how un-objective the real world is.

  30. chava
    chava May 27, 2009 at 9:31 am |

    OK, here is the full context (bit long) of the first:

    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. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

  31. William
    William May 27, 2009 at 12:29 pm |

    Saying she has bad politics, fine. You have a difference of opinion. But her competence is beyond repute, and you repeating this right-wing “she’s stupid” meme that Holly was even talking about in this very post is nothing but oppressive bullshit.

    Notice how I never said she was stupid. I said I thought there was a problem with the way she interpreted something. Turned out I was wrong there (and you weren’t the first, or even third person to have pointed it out) and I admitted it. I think she’s a bad pick for the same reasons I thought Roberts and Alito were bad picks. She is marginally improved by the fact that she recognizes and life experiences create bias and wants to work with that rather than ignoring it’s existence, but I still think she’s bad news waiting to happen.

    Also, there is no such thing as “beyond repute.” There are no sacred cows, no lines which should not be crossed, no objective standards can exist which cannot be questioned and reexamined. Information and human knowledge have never been damaged by asking questions about settled issues or even someone making an ass of themselves by speaking beyond their knowledge. Hell, I learned more than a little about both Sotomayor and the history of the 14th amendment by opening my mouth and being proved wrong. I’d be willing to bet there were other people who learned from my fuck up too.

    Calling dissent, even uncivil dissent, oppression has the same stink as calling it unpatriotic.

  32. Cedar
    Cedar May 28, 2009 at 2:57 am |

    It’s not that you “dissented” it’s how you did it; I can walk down the street in a racist manner (e.g. going out of my way to avoid black people), but walking down the street is not, in and of itself, oppressive. You state quite baldly that you know more about the law than she does. And we should trust you for that on the basis of? …well, actually, you didn’t give any supporting evidence, so all we have is a male name of British origin versus a Latina… You simply demand we assume, without any evidence or even explaining what you mean, that you not only know better than her, but that she doesn’t understand the law. That you, someone with no legal background so far as we know, have so much greater insight into the law that you can tell that she just doesn’t understand what’s going on. You’re just plain better than her.

    So, yes, you are calling her stupid, and yes, it is oppressive. I said very clearly that it was easily possible to express your dissent/skepticism without heading into graduated-at-the-top-of-her-class-Sotomayor-can’t-understand-basic-legal-issues.

    And you’re going to love this next paragraph. When you say “there are no sacred cows,” are you aware of what you’re referencing, that you’re using racist/Orientalist/imperialist ideologies about Hindus to demand that your priorities in the world be the only ones that count?

    Anyway, what are you trying to say by saying my critique of your statement–dissent from it, if you will–stinks as if I were saying you were unpatriotic? While I criticized the racist sense of superiority oozing out of your statement, I didn’t tell you not to criticize her, I made that clear–whereas ‘unpatriotic’ assertions are pretty clearly based in “don’t criticize the government,” and you quite explicitly say that no one should criticize political speech on the basis of its being racist and sexist. So, I have to assume that you simply don’t want the politics of your statements to be examined or critiqued… that is, that you want to make sure no one dissents from your position.

    Just sayin’.

  33. Nia J.
    Nia J. May 28, 2009 at 8:32 am |

    just seconding what Cedar said. Saying that Sonia Sotomayor doesn’t get or ‘understand’ how the 14th amendment works is extremely condescending, and does suggest that you think she’s stupid.

  34. chava
    chava May 28, 2009 at 11:16 am |

    Um, I work principally on Orientalist thought, and even *I* think that’s policing the language a bit much. Also, I really don’t see how it relates to your argument against William here.

    The “sacred cow” metaphor passed into English from the India, yes–meaning a religious object that is immune from criticism, generally unreasonably so. Do you also object to “Holy cow!” as an exclamation of surprise, or “Jesus Tapdancing Christ!” as religiously rooted metaphor? What about “the leopard cannot change its spots” or “cherchez la femme”?

    We should be aware of where our language comes from, and sensitive to it hurting others, but if we gutted English of every possibly offensive metaphor, there would be very few left.

    As for the main argument–It did sound like William was calling her inept, and it did sound condescending. However, I’m not sure that we shouldn’t be able to call our political figures out on their “stupidity” regardless of how much more they know than I. I’m quite certain Bush knows more about professional politics than I (hell, Palin probably does too). I still think they are idiots.

  35. chava
    chava May 28, 2009 at 11:17 am |

    that should be “than us,” not, “than I,” I’m not advocating myself as a yardstick here ;-)

  36. Manju
    Manju May 28, 2009 at 11:57 am |

    I didn’t read William as literally asserting Soto doesn’t understand the 14th amendment, but rather saying in a colloquial way that he disagrees with her… but doing so with an extra edge which is, well, condescending and insulting.

    But rather common. After all, we often frame our disagreements with the opposition as if they lack understanding:

    http://news.google.com/newspapers?nid=1129&dat=19871013&id=fN0NAAAAIBAJ&sjid=1W0DAAAAIBAJ&pg=5296,3639907

    Should we withhold such hyperbole for women because it intersects with gender based stereotypes? I guess that’s the consensus here, and it makes sense assuming women are more likely to be condescended toward, but two points worth considering:

    1. Bending over backwards to be polite and nice to someone is also condescening, especially if that’s not how you treat others. For example, that’s what we do to children usually.

    2. Its probably unworkable. I’ve been commenting on progressive blogs a long time now, and as a POC I’m presumably entitled to the higher level of protection which you advocate. But yet I’ve been routinely called an ignorant asshole despite being obviously brilliant, good looking, and humble.

    But what to do? Obviously my neo-colonialist free market ideology needs to be called out on a progressive blog for what it is, or at least perceived to be.

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