Pulpit Bulls

Policy, Politics, and What's In Between

Sotomayor Smears v. The Truth

Posted by Eric on May 27, 2009

Rightwingers have been dropping mad diss tracks smack talkin’ Sonia Sotomayor. Smart people have given some pretty convincing rebuttals that you should hear. Unfortunately, I don’t have a whole lot of original thoughts to add, so what can I do? I know: aggregate! For an awesomely convenient list of criticisms and responses concerning our new Supreme Court nominee, meet me below the fold…

Isn’t Sotomayor dumb? Even her anonymous clerks think so!!

I haven’t met her, but that is indeed what a Jeffrey Rosen article for the New Republic implies. However, despite Rosen’s slew of anonymous attacks, Sotomayor’s clerks that have gone on the record offer nothing but praise. The folks at SCOTUSBlog take a look at her actual judicial opinions, and come away with…nothing but praise. Of course despite growing up in poverty, she graduated from Princeton summa cum laude before receiving her JD from Yale, where served as editor of the Yale Law Journal.

And just in case it means anything, both moron Alberto Gonzales and non-moron Barack Obama believe she is qualified to serve.

Didn’t Sotomayor say that judges make policy? Me no want activist court!!

Indeed, Sotomayor said:

All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made. And I know this is on tape and I should never say that because we don’t make law. I know. Okay, I know. I’m not promoting it. I’m not advocating it.

As Sam Stein notes, this is pretty conventional thinking. Supreme Court Justices have been policymakers since Marbury v. Madison. Does anyone really not believe that the Court was setting policy in major decisions like Plessy v. Ferguson, Lochner v. New York, Brown v. Board of Education, or Lawrence v. Texas? Disagreeing with the results of some, or even all, of these decisions is fine. But there are nine policymakers on the Supreme Court. This isn’t up for debate.

Isn’t Sotomayor a reverse racist?  I heard about this Ricci v. DeStefano case and she obviously hates white people!!

The Ricci case stars Frank Ricci in the lead role – he’s a hardworking and dyslexic firefighter who studied his ass of for an exam, hoping that his employer, the City of New Haven Fire Department, would promote him.  He did well on the exam, but as Doug Kendall and Dahlia Lithwick detail in Slate, nobody got promoted:

The city of New Haven threw out the results of the test he took because it feared that the examination was discriminatory. That’s because none of the African-American candidates, and only two of the 50 minority candidates, who took the test would have been eligible for promotion based on the results. Regardless of how you and I may feel about Frank Ricci or how much he deserved to be promoted, discriminatory results like that can run afoul of Title VII of the Civil Rights Act of 1964. And in this case the results of the test far exceeded the statistical cutoff that suggests a constitutional violation has occurred.

Ricci sued the city, of course. And when the Second Circuit Court of Appeals heard the case, the court – which Sotomayor serves on – unanimously sided with New Haven, agreeing that a Title VII lawsuit was a reasonable fear.

Dylan Matthews, writing for Campus Progress, notes that despite the unfortunate circumstances of Ricci’s plight, “ruling against him does not make Sotomayor heartless. On the contrary, it shows her ability to focus on the core legal issues of a case.”  This is supposedly the type of interpretation that “strict constructionists” want. But I guess if that interpretation goes against their desired outcomes, then letter of the law be damned.

Why Did Sotomayor say that Latinas would be better judges than whities? She obviously hates white people!!

For the full context of the quote everyone is talking about, you can read the full speech here. In it, Sotomayor says, “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 hasn’t lived that life.”

Although she probably didn’t word the statement as clearly as she should have, her underlying point is one I mentioned when discussing empathy a couple days ago. To rephrase:  jurisprudence is not black and white. The Constitution is old and vague and it really does take an understanding of the world to apply. If the law was always clear, concise, detailed, Constitutional and just, then we wouldn’t even need judges. But unfortunately, the world we do live in isn’t like that, and we benefit by having Justices approach the law with diverse levels of experiences. And so yes, when the court is dominated almost solely by white men, sometimes a court really could reach a better conclusion than they would have if they were lacking a wise Latina women with the richness of her experiences.

Greg Sargent, looking at the full context of her remarks, adds:

It’s clear that Sotomayor was merely saying that it’s inevitable that a judge’s personal race-based and gender-based experiences will impact judging, particularly in race and sex discrimination cases. As a result, she said, while such formative experiences can be enriching and contribute to wise decisions, a judge should also be aware of them in order to avoid being wholly dominated by them.

Didn’t Sotomayor only get picked because she is an Hispanic? Identity Politics!!

This is a line you hear from some conservative activist groups, but national Republicans will probably try and clamp down on it for the sake of their party’s political future. With that said, a diverse court should represent a diverse population, blah blah, the points been made and, really, it is pretty intuitive.

As for the “identity politics” meme, all politics is identity politics of some sort. And Supreme Court appointments are politics! Still, it does seem that this sort of attack is only brandished around when a non-white person is the center of focus. Mattew Yglesias snarks, “Somehow, when George W. Bush affects a Texas accent, that’s not identity politics. When John Edwards gets a VP nomination, that’s not identity politics. But Sonia Sotomayor! Oh my heavens!”

On this score, Matt Zeitlin makes an excellent observation about the identity politics of Sam Alito’s appoitment:

And while Alito, being yet another white, Catholic male, doesn’t seem like an identity pick, he was in a strange way. That’s because for conservatives, appointing conservative Catholics is a way of communicating to the base, especially those who care about social issues, that the appointee is one of us and isn’t likely to be too friendly to abortion rights. But since this type of dogwhistling/identity politics is invisible to the mainstream press, no one ever really talks about it, and picks like Alito’s are seen as totally normative.”

So there you have it: an exhaustive list of the criticism you have been hearing and the smart responses from around the blogosphere. Print this out, shrink down the font and get it tattooed to the back of your eyelids to memorize while you sleep. Then let the other side have it!


One Response to “Sotomayor Smears v. The Truth”

  1. Nora said

    “when the court is dominated almost solely by white men, sometimes a court really could reach a better conclusion than they would have if they were lacking a wise Latina women with the richness of her experiences.”

    I remember reading this quote, and seeing nothing wrong with it, but of course I am coming from a feminist standpoint, but you explained it perfectly in your blog associating it with the understanding and justness of the constitution. Nice work eric!

    Way to bring up identity politics! It’s good for the public to be reminded of their simple mindedness with it comes to political appointments, and that it has nothing to do with identity, but experience and expertise. Again, great blog!!!

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