I'll have a lot more to say about Judge Sotomayor, but I am disappointed in her testimony about her "wise Latina" remark to the Senate today.
In a speech a few years ago (and on several other occasions) she built an argument, saying that she disagreed with Justice O'Connor's claim that in reaching decisions, a wise woman will reach the same conclusion as a wise man. Rather, she explicitly argued, a "wise Latina" will reach a better conclusion than white men.
She clearly meant what she said: it wasn't an offhanded comment, it was an explicit and intentional and reasoned and argued claim.
Her argument today, however, is that she was trying to agree with what she believed O'Connor intended, while disagreeing with O'Connor's words:
Justices on the Supreme Court come to different conclusions. [O'Connor's words] can't mean that one of them is unwise. ... So her literal words couldn't have meant what they said; she had to have meant that she was talking about the equal value of the capacity to be fair and impartial.
I think she is misrepresenting her own words ("better" vs. "equal value ..."); but -- in my opinion, worse -- she is getting O'Connor wrong. O'Connor did mean that they will come to the same conclusion, not that their different conclusions will have the same value. O'Connor believes that the law is not something to be viewed differently by people with different life experiences, but something that has, ideally, correct and incorrect interpretations. That we are under the Rule of Law, not the Rule of Man. As she wrote in the Chinese Journal of International Law (2003), "the Rule of Law requires that legal rules be publicly known, consistently enforced, and even-handedly applied."
And that's what's really troubling to me here: worse than saying that she will reach superior conclusions by her experiences, she is saying that different conclusions by wise people are of "equal value." (And it's especially irrational in light of the fact that she ties it to impartiality, a concept that denies that your experiences have a significant influence on your conclusions.)
Sotomayor said this claim to female and Latino audiences, saying she was "trying to inspire them to believe that their life experiences would enrich the legal system, because different life experiences always do. I don't think that there's a quarrel with that in our society."
I do deny that the legal system is enriched by having judges who will view the law through their own experiences, rather than by what the law says. I deny that rule of man is a good thing, that inconsistency is positive. I assert that rule of law is the path to justice and order and liberty.
I am not sure what to believe at this point: does she believe that her experiences make her a better judge (in certain cases, at least); or does she believe that her experiences simply make her a different judge and that application of the law is "enriched" by having judges who will apply that law differently based on their distinct lack of impartiality due to those experiences?
Frankly, her explanation today troubles me more than her initial statement.
Cross-posted on <pudge/*>.
Posted by pudge at July 14, 2009 09:51 AM | Email ThisSay what you will about Sotomayor, but her record shows her to be an accomplished legal scholar.
The advantage of a diversity of experience is not in applying it to the Law, but to the Issues and Facts of a case. This is not a new idea.
What is new with Sotomayor is that for the first time the views of a "wise Latina woman" would be applied at the SCOTUS level.
And different Judges reach different conclusions leading to split decisions all the time. Heck, if it were simple we wouldn't need multiple layers of Federal courts and 9 SCOTUS Justices
Posted by: MikeBoyScout on July 14, 2009 10:14 AMIrrelevant.
The advantage of a diversity of experience is not in applying it to the Law, but to the Issues and Facts of a case.
The Rule of Law, if followed, will lead wise judges to the same conclusions overwhelmingly most of the time.
And different Judges reach different conclusions leading to split decisions all the time.
Usually because one side or the other is not following the rule of law.
Ok, just once...
How is being an accomplished legal scholar "irrelevant" to following the rule of law?
"I assert that rule of law is the path to justice and order and liberty."
Posted by pudge at July 14, 2009 09:51 AM
But I'll throw you an 'irrelevant' bone... Have YOU attended law school? Know anyone who graduated Yale law school?
:-D
The inability to recognize this often brings pudge to superficial conclusions, like, Usually because one side or the other is not following the rule of law. That is not a serious study, but happens to be painfully partisan.
Posted by: John Jensen on July 14, 2009 10:32 AMBecause they are unfortunately unrelated. It's (to me) like asking, how is being an accomplished Catholic priest "irrelevant" to following God's commandments? We know that one does not always lead to the other. (And it is worse for judges and lawyers, since many law schools -- as opposed to seminaries -- teach *against* the rule of law.)
But I'll throw you an 'irrelevant' bone... Have YOU attended law school? Know anyone who graduated Yale law school?
You're right, those questions are irrelevant.
Jensen: it takes not much beyond an elementary study of the judicial system that which facts a judge/justice finds most important alter the outcome far more than differing application of the rule of law/man
Nope, you're question-begging. What facts someone "finds" most important usually is, in "close cases," an issue of Rule of Law versus Rule of Man. Lily Ledbetter is a prime example of this, and it's odd the Democrats keep bringing it up, because it hurts their case: the Democrats chose to focus on the fact that she had been discriminated against, ignoring the law that said this fact no longer applied.
Same thing in DC v. Heller. Rather than following the law of the Constitution which clearly and unequivocally recognizes an individual right to keep and bear arms, Justice Stevens focused on "facts" like that there is no explicit statement of purpose (which is also not present in other Bill of Rights amendments), that an individual right was not made explicit (even though the language is identical to other individual rights); and so on. Frankly, I really am surprised that DC v. Heller was a 5-4 decision ... it just shows how far some people will go to ignore the law.
(BTW, I have no serious problem with Sotomayor's opinion in the Cuomo case that held DC v. Heller is not binding on the states. She is following a precedent, an awful precedent, but one that says only the Supreme Court can incorporate. I also don't have a serious problem with another district court saying it is binding on the states ... that forces the Supreme Court's hand to resolve the issue, which -- due to this insane doctrine of selective incorporation that the Court invented -- only it can do.)
pudge, I take it you are not a Roman Catholic and are not too familiar with the Reformation.
How is being an accomplished legal scholar "irrelevant" to following the rule of law?
Because they are unfortunately unrelated.????
True.
... and are not too familiar with the Reformation.
False. And irrelevant.
A priest should not, among other things, diddle little boys. Yet, some do. Being an accomplished priest does not mean they won't diddle little boys. The two things are unrelated.
So too are being an accomplished legal scholar and following the rule of law unrelated. Justice Breyer wrote a whole book explaining why he does NOT follow the rule of law, and he is an accomplished legal scholar.
And no, I am not using circular logic at all. It is not circular logic to say two things are unrelated by saying they aren't related, because "you cannot prove a negative." You would have to show how they are related. You can't. Because they aren't. But be my guest in trying. Knock yourself out.
I am evaluating her without an eye toward any political circumstances whatsoever. Whether it helps or hurts any parties or politicians; whether she is inevitable or not; whether she is the "best we can hope for" or not. None of that matters to me at all. I am simply evaluating her in light of my principles of law and justice and so on. Nothing more, and nothing less.
And actually, that's worse, in my mind: you don't even NEED -- according to the rule she followed -- to show that the test was discriminatory in order to commit de facto discrimination against the firefighters who passed the test.
She was wrong -- because the precedent was wrong -- but it's hard to fault her too much for following precedent.
Mens rea.
Posted by: Amused by Liberals on July 14, 2009 04:24 PMP.S. the above dichotomy is not mine (I wish I were that clever) but unfortunately I cannot cite the source.
Posted by: Not a Number on July 14, 2009 06:44 PMP.S. the above dichotomy is not mine (I wish I were that clever) but unfortunately I cannot cite the source.
Posted by: Not a Number on July 14, 2009 06:44 PMThe ultimate argument the left offers is a cynical "I won" - they have the numbers to confirm so questions regarding her ability to actually do the job are largely irrelevant. Even losers like Graham readily concede the point.
I think it interesting to witness the stark difference between the left and the right in choosing someone for such an important job. The right didn't resort to a partisan hack like sotomayor. They found and supported superior candidates in Roberts and Alito. First rate minds who render quality decisions. I find it equally interesting that the left - including Obamination - opposed those candidates for purely partisan reasons.
In the end, when you settle for "good enough" the best you can hope for or expect will be good enough. When you prop up a partisan hack the result will be crap decisions that ill serve ALL OF US.
Posted by: Alphabet Soup on July 14, 2009 06:59 PMThe government we elect is a product of what "we deserve". Looks like the product we have elected is turning out to be an out of control crap/effluent sandwich. That doesn't just apply to Democrats either - have to honest and asked what brought this on ? (his predecessor to a large extent)
Posted by: KDS on July 14, 2009 07:56 PMPersonally, from what little I saw, the whole hearing seemed quite amusing. Graham asking if she was a "bully"? I can respect (and disagree) with the legal arguments pudge is making here, but filling a confirmation hearing with things of no relevance is just a plain waste of time.
Of course, at least Graham had his wry moments. Sessions, on the other hand, just came across as a dullard. In fact, for all his talk of Sotomayor's "racism", that quip about Cabranes in the dispute about the Ricci v. DeStefano case suggests that Sessions has racial bias on the brain far more than Sotomayor does.
No, it's not. Temperament is important. As important as her judicial philosophy? No, but if they didn't at least bring up the fact that she has serious questions about her temperament, that would be just bizarre.
And everything quoted was about her ability to do her job as a Justice of the Supreme Court.
"One thing I've demonstrated often in 16 years is you can do this job without asking a single question."
is almost farcical.
Posted by: demo kid on July 15, 2009 07:41 AM... from officers of the court.
nothing that they said seemed to go to her ability
You're confused. Your temperament is PART OF your ability to be a good Supreme Court justice. A very important part.
I'd prefer to have a justice in the Supreme Court that actually asked tough, aggressive questions
You're misrepresenting the problems Graham raised with her temperament. Please don't.
Graham's question was appropriately, but lamely worded.
Posted by: MikeBoyScout on July 15, 2009 09:36 AMRight. And my only point is that these are people who take certain oaths and it lends SOME credibility to what they say in this context. It certainly cannot be accepted as gospel truth, obviously, but it's more than just random people off the street, or people whose identities are completely unknown.
Like, if a newspaper article says, "someone close to the administration," that's meaningless, because it could be a janitor. If it says, "an Army General said," that is more meaningful, IF we know that an Army General actually said it, which we don't. Here we know they actually ARE officers of the court, and that they actually said this, which is meaningful.
And if you read the handful of bad temperament criticisms, they are rather lame whines.
You say that as a supporter of Sotomayor. You're not convincing.
The mere fact that someone like BoyScoutBoy finds it completely acceptable for Sotomayor to conclude that she is smarter than him on the sole basis of his race proves that anything he observes is blind obeisance to partisan unity.
The Democrats are openly proving that they could out up a squid for Justice and liberal true believers would confirm it.
Soup identified the relevant point. Liberals "won" and they have the numbers to confirm a squid so . . . a squid it will be.
She is a dancing squid though . . . did anyone see the two-step shuffle she did today about whether or not Americans have the right to defend themselves?
She took a simple question about self defense and transformed it into an absurd hypothetical that had nothing to do with the question.
Her response was more that of a politician than a judge.
This liberal squid will be basically the same as the liberal squid she is replacing, only more entertaining with her smart ass disingenuousness, and Obama-like double-speak.
Wow, now we can have an utterly unqualified racist Black President and an utterly unqualified racist justice of the Supreme Court - how very progressive.
Freedom is the right to be stupid, and Democrats certianly know how to exercise that freedom.
Posted by: Amused by Liberals on July 15, 2009 10:51 AMAgain with the lies. At NO POINT did she say that she was "smarter'. Point out where she did.
She took a simple question about self defense and transformed it into an absurd hypothetical that had nothing to do with the question.
Wow... a justice of the Supreme Court expressing... nuance? Awful! It's like she's trying to apply for a job deciding on questions of law or something, instead of spewing out rank partisan positions.
All you're doing is recycling rather pathetic and dim arguments from your Republican masters. Have an original thought for a change.
Posted by: demo kid on July 15, 2009 01:38 PMRight, she said her legal opinions were BETTER. That is close to, but not the same as, saying she is SMARTER.
This lie is certainly not as bad as Leahy's, where he deceptively claimed: "You said that, quote, you 'would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.'" (emphasis added)
Not only is that a blatant lie -- he explicitly said he was quoting her, when he was not -- but it undercuts the very nature of the criticism of what she actually DID say, which was, "more often than not reach a better conclusion than a white male who hasn't lived that life."
I hope you criticized Leahy for HIS lie, demo kid.
Exactly, and Leahy just told a damned lie about what Sotomayor said. Where's your criticism for him?
Stating that her decisions are better is not the same as implying that she is smarter?
This is precisely why I am amused by liberals.
Beyond silly
Thanks
Posted by: Amused by Liberals on July 15, 2009 03:38 PM
@42: Stating that her decisions are better is not the same as implying that she is smarter?
You're making conjecture far beyond what was said in the quote when examined in context. And no, she never used the word "smart" in the speech. Adding it in is just a lie.
This is why I'm amused by conservatives that can't seem to read.
Posted by: demo kid on July 16, 2009 09:05 AMWhen someone says she thinks she is "smarter" because she said she would reach "better" conclusions, you call it a "lie."
But when Leahy *actually quotes* her and *removes the controversial part of the quote* in doing so, you say the quote "differs" (which falsely implies, by the way, that it is a quote: it's not! that's the lie!).
And the "point" of doing so is obvious to anyone paying attention: he removed the controversial part of the quote. Gee, what could be his intent? Maybe ... to make the quote seem uncontroversial?
Don't be so daft.
@44. demo kid, you're being completely non-serious.
This falls neatly under the heading: "When you can't dazzle them with brilliance baffle them with bullshit."
DemoKid is being obviously and deliberately dishonest because he is a partisan bound to defend Sotomayor unconditionally
and he has no rational way to defend her against citations of her own obviously racist statements.
BTW, any bullshit will do.
"You're making conjecture far beyond what was said in the quote when examined in context. And no, she never used the word "smart" in the speech. Adding it in is just a lie."
You are only proving that you will stoop to an idiotic argument and silly inapt accusation in reverse because you are bent upon defending Sotomayor.
DemoKid, this is a blog. To any reader of this blog, the strength of your arguments relies solely on what you write. You are making a fool of yourself.
Keep it up; It's entertaining for me.
To which the response of the Republican members of the panel was to continually raise it. What exactly would be the point of making it "less controversial" if the same quote was raised again and again? It accomplishes nothing. Reading any deep meaning into that seems pointless.
When someone says she thinks she is "smarter" because she said she would reach "better" conclusions, you call it a "lie."
There's a difference between a misquote and an intentional falsehood. Leahy had absolutely nothing to gain by altering the quote, and the entire quote is pretty much mangled. Perhaps wrong to use the word "quote" for a paraphrase, but to imply any other meaning behind it is a stretch.
On the other hand, you're plainly lying by stating that she claimed Latinas to be "smarter". She said no such thing, and you haven't pointed out otherwise.
@45: and he has no rational way to defend her against citations of her own obviously racist statements.
After some of the choice quotes by the members of the committee, I doubt that you can say that the interviewee is the most "racist" in the room.
Posted by: demo kid on July 16, 2009 10:44 AMPlease, dispense with the BS. I could make the same argument about Amused: why would he "lie" (your word) since he knew you would respond?
Leahy lied. He did it because he wanted to define the meaning of what she said before anyone else had a chance to. He was being intentionally deceptive. He LIED. And you are defending his LIE only because he is on your side. That's the only reason. Not a single person doubts that were the shoe on the other foot, you would be saying he lied, just as you're saying Amused lied.
There's a difference between a misquote and an intentional falsehood.
Exactly. Leahy lied.
the entire quote is pretty much mangled
False. The quote is correct except for the last part ... the controversial part. He lied.
Perhaps wrong to use the word "quote" for a paraphrase
Yes, he was wrong. He lied. And by YOUR standard it is NOT a paraphrase ANYWAY. Don't be daft. No sane person thinks those two sets of words are equivalent. Even Sotomayor herself said she didn't mean those words literally when she said them. She says that is what she MEANT, but a paraphrase is faithful not just to meaning but to words used, ESPECIALLY when those words used ARE the source of the controversy.
Leahy lied.
you're plainly lying by stating that she claimed Latinas to be "smarter"
No, you're plainly lying by claiming that I said any such thing.
Seriously though, I have to believe you don't even believe what you're saying here. You have two opposite standards for people you agree with, and people you don't (so much so that you have to pretend I said something I didn't just so you can be consistent).
She said no such thing
She said no such thing as Leahy said she did. Leahy lied.
Nice job DemoKid
Posted by: Amused by Liberals on July 16, 2009 12:52 PMThank you for reinforcing my comment at #23. Garbage in - garbage out...
Posted by: Alphabet Soup on July 16, 2009 01:15 PMAren't I wonderful??
Posted by: Amused by Muffman on July 16, 2009 01:38 PMAren't I the very relevant one indeed (quite unlike anyone else)??
Oh . . . got a muff . . .
Posted by: Amused by Muffman on July 16, 2009 06:16 PM