The True Confirmation “Battle” Begins
posted by Kevin Johnson
President Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court initially provoked considerable consternation from certain circles, with Rush Limbaugh even characterizing her as a “reverse racist” based on a line taken out of context (for reponses, click here and here) from a speech at UC Berkeley several years ago.
Little attention was initially paid to the many opinions that she has written since becoming a federal judge in 1992, which makes the evaluation of her nomination much different than that of Chief Justice John Roberts who had just a couple of years of experience on the bench.
Much of the early hullaballo over the Sotomayor nomination mellowed as Republicans saw where the harsh rhetoric was leading them (basically down the tubes) with Latino voters. Indeed, there has been a kind of radio silence on the Sotomayor nomination for the last few weeks.
Now, the Term is over. Justice Souter has walked into the sunset. And, with the Supreme Court’s decision in Ricci (see the analysis of that decision from SCOTUSBLOG), the confirmation process should enter a more substantive (and hopefully rational) phase.
Academics and lawyers from a variety of political persuasions have been looking at Judge Sotomayor’s decisions for weeks. We can expect a variety of diverse views about her joining the lower court opinion in Ricci.
This all, as my colleague Vik Amar has pointed out, is a fair game in the confirmation process. We should be looking at a nominee’s work product as a judge and asking questions like this: did Ricci change the law (as Linda Greenhouse argues) in a way that the Second Circuit (and Judge Sotomayor) could not legitimately do?
This all could be moot if, as Tom Goldstein opines, the confirmation process is in fact over and Justice Sotomayor alreadt is a done deal. I am not so sure and look forward to the confirmation hearings in July. One never knows how things like this might go. But, given that she would be another historic first on the Court as Thurgood Marshall and Sandra Day O’Connor were, Sonia Sotomayor, I bet, is taking nothing for granted. Neither am I. The spectacle of the Clarence Thomas confirmation hearings remain in our collective minds (no, I know of no “smoking guns”).
July 1, 2009 at 7:51 am
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Responses (3)
Maryland Conservatarian - July 1, 2009 at 2:58 pm
To some of us, the “wise Latina” phrase seems to be a recurring theme in her writings so I don’t think it was taken much out of context. I read your responses though and will at least agree that, for many, her comments aren’t that controversial – certainly I can believe they come across as mainstream for most law professors.
And that even if she was a bit inartful in her choice of words, you can understand what she meant is of no comfort to the rest of us who know – with all the certainty that accrues from living in a PC-environment – that similar remarks from those of a different pallor and sex would not receive such “understanding”.
…and I was going to chastise you for your claim (in one of your responses) that Judge Sotomayor’s “incredible, personal” story can only possibly be rivaled by the President’s – ignoring as it does that of Justice Thomas’s but on second thought, Justice Thomas did go to Holy Cross for his undergaduate degree and is, accordingly, the more privileged.
AYY - July 1, 2009 at 10:21 pm
There’s quite a bit of innuendo in this post, but not much substance, and what there is of substance isn’t quite right.
Dean/Prof (sorry, not sure about the proper title) Johnson says:
“Rush Limbaugh even characterizing her as a “reverse racist” based on a line taken out of context (for reponses, click here and here) from a speech at UC Berkeley several years ago.”
It’s ironic that someone would criticize Rush Limbaugh for taking something out of context, when the left frequently takes his comments out of context. But be that as it may,
even if calling Judge Sotomayor a “reverse racist” is an exaggeration, she certainly espouses the ethic of identity politics. While the post implies, but doesn’t quite say, that there’s something wrong with criticizing her for that, such criticisms are eminently fair and responsible.
“We should be looking at a nominee’s work product as a judge and asking questions like this: did Ricci change the law (as Linda Greenhouse argues) in a way that the Second Circuit (and Judge Sotomayor) could not legitimately do?”
Well we can ask that if we want, but the author of the post must know that’s not what the criticisms of Judge Sotomayor’s opinion were about. The problem was the way she handled it — a summary opinion– that another Hispanic appellate judge criticized her for, and that even the dissent in Ricci didn’t appear to agree with.
“. . . given that she would be another historic first on the Court as Thurgood Marshall and Sandra Day O’Connor were”
The post doesn’t say what the historic first would be. If Judge Sotomayor is confirmed she would be our second
Hispanic Justice. If the post refers to female Hispanic Justices then okay, that’s a historic first, but it’s not a historic first like Thurgood Marshall or Sandra Day O’Connor were historic firsts.
Isobel - July 5, 2009 at 6:37 pm
Maryland Conservatarian — how has the wise latina issue been a recurring theme in her writing? Have you read her opinions? In employment discrimination cases, she routinely has ruled against minority plaintiffs by carefully hewing to 2d Circuit and Supreme Court precedents. If your impulse is to go to the Ricci summary order to validate your nonsensical claim that she routinely is guided by identity politics, you would be barking up the wrong tree. In the summary order (which was likely authored by Judge Pooler, the most senior active judge on the panel), the panel affirmed the district court’s opinion, which relied extensively on existing 2d Circuit precedent — basically, the panel said that the issue was settled by these precedents and they, as intermediate appellate judges, had to follow it. In the en banc rehearing seven judges of the 2d Circuit agreed. If anything, Judge Sotomayor’s record reflects someone who is not guided by ideology and instead follows the law as it is written.
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