Let the debate begin. . .

As I’m sure you know, President Obama has nominated Judge Sonia Sotomayor to replace Justice David Souter on the Supreme Court. Prior to making his selection, President Obama said this:

“I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”

You can see the full video here. Let’s talk for a minute about the concept of “empathy” in a Supreme Court Justice. Have you ever seen a picture of Lady Justice? Take a look:

Lady Justice

This is the typical picture of Lady Justice holding the scales. Does anyone notice what she’s wearing besides that oh so sexy robe and a smile? Yes, the even sexier blindfold, which matches nicely with her sword. Now I ask you: How does she show empathy with a blindfold on? Hmmmm? I know, I know, Lady Justice is some invention of a bigoted white guy who wants an excuse to screw over anyone HE doesn’t like. Well, let’s pretend that’s not true. Let’s pretend that Lady Justice reflects more than 200 years of American jurisprudence tradition, since that’s far closer to the truth. Lady Justice was a graphical representation of how we all expect to be judged. The facts are weighed without prejudice and decisions are made according to the law.

But, apparently, this is a concept unfamiliar to President Obama. That’s a little frightening, considering he used to teach Constitutional law at the University of Chicago!!

Regardless, “empathy” is now a requirement for a Supreme Court Justice. And it looks like President Obama found her. Judge Sonia Sotomayor is someone who has made a career out of telling anyone and everyone who will listen that she feels it is her background that makes her fair and not her judicial reasoning. I’ll get to that in a moment. Let’s start by looking at her judicial record – is she qualified?

A quick glance at her Wikipedia profile shows quite a resume. Certainly from an experience point of view, she’s qualified. What do her colleagues say about her? Well, according to an article by Jeffrey Rosen in The New Republic, it’s a mixed bag. Those who worked for her think she was great. They have lots of nice things to say about her. Those who worked for other judges on the Second Circuit seem to have a different opinion. Some of the comments are quite interesting:

“not that smart and kind of a bully on the bench”

“She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.”

You can’t always trust these kind of comments. Professional jealousy can sometimes play a role, especially if those who worked FOR her, like her. But it’s certainly worth noting.

What about her legal decisions? According to Mr. Rosen’s research, her decisions aren’t all that impressive to those she works with. One example cited from the article is, “In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants.” In addition, National Review Online has an article detailing her being overturned by the Supreme Court. Apparently, she has had five cases reviewed by the Supreme Court over the years. A whopping three of those five cases have been overturned! Ok, that’s not professional jealousy, that’s bad law!

So her qualifications alone are suspect, but let’s look at her philosophy. There are a couple of things that give us pause. First, in 2005 at Duke University, Ms. Sotomayor said that, “Court of Appeals is where policy is made.” (It’s fun to watch the video of her making this comment. She realizes she let the cat out of the bag and quickly tries to put it back in.) That’s why we have LEGISLATORS! Legislators make the policy because they are the ones who are accountable to the voters. If judges, who are appointed, are left to make policy from the bench, they have no accountability. There’s no way to overturn their ruling unless they contradict themselves. Alternatively, Congress or the state legislatures would have to make new law prohibiting the enforcement of this new policy from the court. This is what we call judicial activism. It flies in the face of how our government was constructed and is something eagerly practiced by left-wing advocates. They know they can’t get their ideas passed by law because the overwhelming majority of Americans are conservative, whether they are Republican or Democrats. Most people live their lives as conservatives, with conservative principles.

Second, there’s the very troubling comment from a 2001 speech at Berkeley in California. You may have heard it, here it is:

“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.”

Ok, everybody take a breath. (And by everybody, I mean me!) Wow, this is inflammatory! It goes right back to the issue of empathy. She believes, according to this quote, that a wise Latina woman would be more fair, right? Is this what she’s saying? Obviously, if a white man were to say this about a Latina woman, he would not only be disqualified from being a Supreme Court judge, but would be ostracized from society. Does anyone remember what happened to Trent Lott for saying something WAY more innocuous about Strom Thurmond? On the occasion of Mr. Thurmond’s 100th birthday, Mr. Lott said that, “we wouldn’t have had all these problems over the years” if Mr. Thurmond had been elected President in 1948. In 1948, Mr. Thurmond was a Dixiecrat and a segregationist. This comment, although immediately apologized for, led to Mr. Lott’s resignation as Majority Leader in the Senate.

When the quote from Ms. Sotomayor surfaced, Robert Gibbs, the White House spokesman, said that he thought, “if she had the speech to do all over again, I think she’d change that. . .” Well, she did have the speech to do over again. In fact, she’s given many speeches over the years and it turns out she didn’t change that. According to Congressional Quarterly, she “delivered multiple speeches between 1994 and 2003 in which she suggested ‘a wise Latina woman’ or ‘wise woman’ judge might ‘reach a better conclusion’ than a male judge.”

So does this mean, as Rush Limbaugh says, that she’s a racist? A sexist? Well, I’m not going to go as far as Rush and say she’s a racist. I think that word is thrown around far too easily. I would say that her world view is certainly racially biased and probably gender biased. Does this mean she’s disqualified from being a Supreme Court Justice? Probably! I certainly don’t want someone on the bench who’s going to look first at who’s standing before her and only then take a look at the facts of the case. The real question here is does her judicial philosophy affect her decisions?

I’m glad you asked! Right now one of her cases is before the Supreme Court. It will be decided before she sits on the bench, if she does. The case is Ricci v. DeStefano. In the case, Frank Ricci, who is a New Haven, CT, firefighter, took a test for a promotion along with 77 other firefighters back in 2003. Ricci is white and he and 16 other white firefighters, along with one hispanic, all passed the test and should have been considered for promotion. The problem is that none of the black candidates passed the test so the city of New Haven decided not to promote anybody for fear of cries of discrimination. Now they are embroiled in a case of reverse discrimination.

Ricci is a dyslexic who bought his own copy of the books he can’t read and paid a friend $1000 to record audio tapes of the books needed to study. He also quit a second job to allow more time to study. This is a case I know a little something about since I live in CT. I was in a bar the other night and happened to strike up a conversation with an EMT who had some very strong feelings about this case. He is adamant that this is not a case of discrimination. He points out that although the books are expensive, every firehouse has a set of the needed books which are available to study from. He believes there is no discrimination here, just politics.

Ms. Sotomayor wrote the decision which upheld the city’s decision not to promote. I have read the summary of Title VII of the Civil Rights Act of 1964 (the law being cited here), and there is nothing that prevents the promotion in this case as long as the test has been evaluated by an impartial board for racial bias, and it has. So the test has been vetted, the books are available, and even a dyslexic has been able to pass it. If the test is biased against anyone, it’s biased against him!

So here you have a case where race is clearly at issue and she decides in favor of the minority race, even though it has been shown that every precaution has been taken to avoid prejudice. I’d say she considers race when she sits on the bench. Clearly, this is just my opinion.

So what are we left with? Her resume is strong, colleagues have mixed opinions of her, and she has said some racially charged things. I think we can do better than this in our Supreme Court Justices. Having said all this, unless she says something outrageous at her hearings or some other information comes to light, she is going to be confirmed. The Republicans are powerless to stop a racially biased, judicial activist from being confirmed. Elections have consequences. VOTE!

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7 Comments

Filed under politics, Uncategorized

7 responses to “Let the debate begin. . .

  1. I think you have made a fairly objective analysis of what we know so far about this candidate for a lifetime appointment to (as you pointed out) a non-elected position.
    The plain fact is that both in words, and her opinions, she has a historical bias based on race and ideology that cannot be justified by anyone using a modicum of intellectual honesty.
    The constant overplaying of the “race card” by the left is coming back to bite them in the bare backed hospital type gowns they are wearing.
    In other words their butts are showing!
    It is not in the best interest of our country to bend justice, to fit a personal agenda, no matter how you came to view the world the way she does.
    She could do us all a favor and withdraw her name, but both her and our president have an agenda and most likely will not.
    Sadly for our country, this may be just the latest in a terrible line of biased “law making” judges nominated, and distorting law in the federal government, ultimately leading to the complete collapse of our US Constitution.

  2. Ryan

    First of all, I’d like to say that i had no idea there was going to be a new supreme judge, and have not heard a damn thing about this woman or her background as a judge. That being said, I wouldn’t really classify her remark as “racist”. I guess it’s racist against white men? But I don’t see people raising arms to defend their right. (I know, I know, “But there should be!”) All she’s saying in this comment is that Hispanic women, generally, have a tougher time getting by in this country than white men. Therefore, they would be a little more down to earth, and their perspective on the world would be more akin to the common person on the street, aka the people. White men, at least most of the ones in politics, are so removed from the world, so insulated, that there judgments and perspective have no grounding in the world we live, but rather the world in which they live. For you to get so worked up over such an innocuous statement, that you might hear anyone utter and not bat an eyelash, makes me think that, in this instance, that you are not really making an “objective analysis” at all. I think that someone influenced your opinion before you wrote this blog. Someone gave you a framework in which to perceive this woman and this statement. That’s the only way that you can make such an outrageous, and kind of silly, assumption. It makes me think that person had an agenda. Was that person a white man? Because if so, I can certainly see what Ms. Sotomayor means.

  3. reedkeys

    First of all, Ryan, I agreed with you in my article that her remark alone is not an indication that she is a racist. But there’s no need to make any assumptions about what she meant. When a person makes a statement that clearly sets up one person over another and the only delineation is race and/or gender, that’s a biased statement and indicates a level of bias in the individual. This is not my opinion, it is a simple matter of understanding the English language. If you take out all the modifying prepositional phrases, you’re left with “a wise Latina woman would make a better decision than a white male.” This is both racially biased and gender biased. She proposes no other modifiers which would alter that understanding. Clearly, she see the world through a racial/gender window. As far as whether a white man can make a fair judgment being “so removed from the world, so insulated,” I would simply reiterate that the world has no bearing when you get into a court room. The only thing that is supposed to matter is the law. This is why lady Justice is blind.

  4. fancybeggar

    Thanks for your blog. It is very insightful of you to note the “blind” nature of justice. This “blindness” is exactly what makes it possible for justice to be empathetic. The quality symbolized by the blindfold is that justice should not consider one’s station in life as provilidged, and therefore allow “important” people to get away with things that people of a lower station cannot. That’s just another way of describing empathy – they are one and the same quality. Granted, it’s a lot easier to make a visiual representation of blindness than empathy. Thank you for reminding us of the principle that empathising with the victim (being blind to who they are, and focusing only on the actions done by the parties) is what justice is all about. Good point.

    Thanks also for pointing out Justice Sotomayor’s excellent qualifications. I should only correct you on one point – it was George Bush who “found her,” not Obama Bush Sr. was the fist President to nominate her to a federal position (according to wikipedia). That’s a small point, but I though I’d give the credit where it is due.

    I’m very encouraged by this statement you mention about her feeling that her background and life experiences make her better able to come to the right conclusion than someone who has not shared her same experiences. I hope every judge on the Supreme Court feels that way; but I’m sure they do. It would be quite uncomfortable to have a justice who thinks their background makes them incapable of coming to a better decision than somebody else. Yikes!

  5. As a white man, I would not want to be party to any law suit that this Judge presided over.

    Why? Because I am white, and because I am a man.

    Should I now trust that her written and spoken words that negatively stereotypes both subgroups will become moot?

    Knowing the law, and applying an interpretation to those laws, without prejudice is what qualifies or disqualifies a person.

    To me, she has disqualified herself via her expressed prejudices.

    However, political power will most likely prevail, and a lifetime appointment will probably be conferred onto a prejudicial judge.

  6. reedkeys

    Ok, Fancy, not sure where to begin with this. First, thank you for the compliments and thank you for reading my blog. I hope you will continue to do so. The symbol of the blindfold is apropos because it disallows any judgment by sight. Therefore it is impossible for the word “victim” to be used until the end of the case. Remember, we are talking about the Supreme Court here. This is not a criminal court or a civil court. Although the concept of blind justice applies to all these courts, the Supreme Courts is exclusively concerned with the Constitutionality of a lower court’s decision. In the case of Ms. Sotomayor, her cases have been overturned by the Supreme Court 3 out of 5 times because in their opinion, she violated the written law.

    As far as who “found” her, Bush (41) didn’t have the plethora of opinions in front of him like President Obama does. Nor had she made the statement about who is a better judge. That statement had only been made in public after she was sitting on the appellate court. At least, that’s the only time anyone cared what she said and decided to take notice. But, apparently, this is exactly the kind of judge Obama was looking for since he does have the litany of facts in front of him.

    The statement she made is by its definition, prejudicial. In this case, it is racially prejudicial. It flies in the face of what we expect from our judges. Goodness knows we have enough to complain about our judicial system without intentionally sabotaging it. I do expect Supreme Court Justices and other judges to take their own life experiences into the court with them and use their good common sense that they learned from their years of life experience. But I don’t expect that they would use it as a weapon against those who they don’t like just because of their national or racial origin.

  7. fancybeggar

    You know, the more I think about it, the more your comments about the principles of justice as practiced in the United States make me feel priviledged to live here. It’s really a testament to us all that our process of discovery in an open court serves, as you mention, to uncover the many ways in which both parties may have suffered victimization throughout the incident that is brought before the court.

    Our system does not require the labeling of either party “THE victim” to accomplish the goal of righting wrongs (although they are assigned positions as “plaintiff” and “defendant” before the trial begins, this is owing to the claims made by police officers or citizens… not, as you have reminded us, a determination of the defendant as perpatrator and the plaintiff as victim). I applaud you for standing up for the rights of the accused – no matter what the evidence against them or their record of past convictions.

    You remind us that we are all potential “victims” until all of the evidence is heard. As you mention, everyone deserves the opportunity to tell their side, and hear the words of those who have an opposing view. We should all remember that, often, the court determines that the arresting officers or the citizen making the complaint are hasty in drawing conclusions and leveling accusations. But, by the same logic, let’s not take that gavel drop as our right to label those who are upheld in a courtroom as “innocent,” and those convicted as “wrongdoers” – we often forget that we do not have a standard in our court system by which such definitive statements can be made. Often – as you likewise point out – decisions made by one court are reversed by another. And, as is often the case, a person may be on one “side” of the courtroom today, and the other side another day.

    In short, people are human… and all human beings are faulable – whether judge, police officer, wealthy patron, or an average citizen, trying to do his best. We all have the capacity to help or harm those around us at various times in our lives – and if we are not constantly aware of our potential for either, we can make regretable choices. It reminds me of something President Obama said recently… but I digress. Anyway, thanks for reminding me of how our system of justice recognizes the fraility of us as individuals, and tries it’s best to focus on the actions, rather than the people. It may not be perfect, but I think it’s the best we can do – at least for now.

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