# Nominee: Sonia Sotomayor

• News
Obama Selects Sotomayor for Court
New York Times said:
WASHINGTON — President Obama announced on Tuesday that he will nominate the federal appeals judge Sonia Sotomayor for the Supreme Court, choosing a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation’s first Hispanic justice.

...Conservatives quickly pointed to such statements after word of her selection on Tuesday.

“Judge Sotomayor is a liberal activist of the first order who thinks her own personal political agenda is more important than the law as written,” said Wendy E. Long, counsel to the Judicial Confirmation Network, an activist group. “She thinks that judges should dictate policy, and that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.”

Interesting opinions - some disturbing to me:

Sotomayor’s Notable Court Opinions and Articles
Judge Sotomayor rejected a claim that a New York ban on a martial arts weapon (a nunchuka) violated a man's Second Amendment rights, explaining the Second Amendment only applies to the federal government.
What? I don't understand this at all - if it's a Constitutional right to bear arms, how can that be infringed by state governments? By this reasoning, you could have all 50 states ban guns categorically, without "infringing" on 2nd amendment rights.

Or: what possible reasoning says the 2nd amendment only applies to the fed, and not the 1st? This exact reasoning would say that Tinker v. Des Moines (classic free speech case) is obviously wrong, because free speech "only applies to the fed": schools, regional government can ban speech all they want. You could have states ban political speech, which is obviously ridiculous. But I'm not claiming a slippery-slope: I'm claiming the reasoning is exactly the same in each. So either we have no free speech rights w/respect to state governments, or there is an intellectually-dishonest double standard.

Another interesting decision:
Judge Sotomayor's most high-profile case, Ricci v. DeStefano, concerns white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement. Joining an unsigned opinion of a three-judge panel of the appeals court, Judge Sotomayor upheld the rejection of a lawsuit by white firefighters, one of them Hispanic, claiming race discrimination and, as part of the full appeals court, she declined to rehear the case.
Sotomayor wrote:
To the contrary, because the board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.
http://documents.nytimes.com/selected-cases-of-judge-sonia-sotomayor#p=2

Outright racism! I'm disgusted that a government employer can deny promotion, explicitly on a person's race as the sole deciding factor, and have that validated. This doesn't even fit the conventional (if tenuous) affirmative-action context where, there are equally qualified candidates of different ethnicity/gender/orientation applying for a position: in this case, they are clearly not equally qualified. Race is the deciding factor, and qualifications are systematically ignored.

## Answers and Replies

Here's a quote from Romney
The nomination of Judge Sonia Sotomayor to the Supreme Court is troubling. Her public statements make it clear she has an expansive view of the role of the judiciary. Historically, the Court is where judges interpret the Constitution and apply the law. It should never be the place "where policy is made," as Judge Sotomayor has said. Like any nominee, she deserves a fair and thorough hearing. What the American public deserves is a judge who will put the law above her own personal political philosophy."
http://politicalticker.blogs.cnn.com/2009/05/26/romney-sotomayor-nomination-troubling

To be honest I know nothing on Sotomayor, so once I get some free time to read about her more indepth, i'll comment.

Chi Meson
Homework Helper
Who cares what Mitt Romney has to say on Sotomayor? Romney is one of the GOP conservatives who has been prepped for the past several weeks to come out swinging no matter who was nominated. It's the way politics goes, of course, and it's the same view from both sides of the fense, I'm sure. But really, Romney is not going to make any reasoned, objective observation. The quote he put in about "where policy is made" was from a line where Sotomayor clearly misspoke during a speech at a Law school recently. She immediately backtracked from that statement, but hey fodder is fodder.

http://blogs.abcnews.com/politicalpunch/2009/05/white-house-off.html
"Conservatives point to remarks Sotomayor made at Duke University Law School in 2005, where she said “the Court of Appeals is where policy is made.”

Catching herself, she said, “I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know.”

As the audience laughed at her comment, Sotomayor said, “I'm not promoting it, and I'm not advocating it…Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. It’s interpretation, it’s application."

CRGreathouse
Homework Helper
Concerns about activism notwithstanding, conservatives should be pleased that Obama didn't nominate a younger, harder-left judge. They certainly have the numbers for that.

Nominating partisans to the supreme court sucks, no matter whose side your on (and I'm on Obama's side). Activist partisans are even worse.

It's like an arm's race, ...and then Bush nominated partisans so Clinton nominated partisans so Bush nominated partisans so Obama nominated partisans. Obviously it is just as difficult to trace the ... backwards in time as it is to trace (...chicken then egg then chicken) backwards. It doesn't matter who started it, it matters who will end it. And it looks like that won't be Obama, unfortunately for all of us.

Chi Meson
Homework Helper
Concerns about activism notwithstanding, conservatives should be pleased that Obama didn't nominate a younger, harder-left judge. They certainly have the numbers for that.
Conservatives would have been much more pleased if the nominee had truly been a hard-left activist. This would have given them more ground in the next election cycle.

russ_watters
Mentor
Interesting opinions - some disturbing to me:
Agreed....

On the 2nd amendment, I don't understand how that can be justified in light of the 14th amendment. Sounds like she's thumbing her nose at it.

In the quote about the racial discrimination, it sounds like she is saying that the law takes precedence over the constitution! And saying that the law says it isn't racism so it isn't racism? Would she have ruled that 'separate but equal' really was equal because the law said it was?

Very odd rulings and logic.

russ_watters
Mentor
Conservatives would have been much more pleased if the nominee had truly been a hard-left activist. This would have given them more ground in the next election cycle.
Well that and they might have been able to torpedo the nomination.

LowlyPion
Homework Helper
I'd say after nominating Harriet Miers the Republicans have little standing to be fussing about credentials.

(Then of course there was Haynsworth and Carswell that Nixon tried to slip on the bench. And later Reagan offered the unfortunate Bork.)

Gokul43201
Staff Emeritus
Gold Member
What? I don't understand this at all - if it's a Constitutional right to bear arms, how can that be infringed by state governments? By this reasoning, you could have all 50 states ban guns categorically, without "infringing" on 2nd amendment rights.
As weird as it sounds, there appears to be precedent for this, and Sotomayor et al refer to that precedent.

http://documents.nytimes.com/selected-cases-of-judge-sonia-sotomayor#p=1

Quoting from Judges' opinion:

It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state"); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding "that the Second Amendment's right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts" and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006). Heller, a case involving a challenge to the District of Columbia's general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present
the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we "must follow Presser" because "[w]here, as here, a Supreme Court precedent has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.'" Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not violate the Second Amendment.​

I find the New Haven firefighters case more troubling, but having not yet read though it properly, will hold my judgment.

russ_watters
Mentor
I'd say after nominating Harriet Miers the Republicans have little standing to be fussing about credentials.
Has anyone anywhere "fuss[ed] about her credentials"? The only "fussing" I see is about her activism.

lisab
Staff Emeritus
Gold Member
Has anyone anywhere "fuss[ed] about her credentials"? The only "fussing" I see is about her activism.

Well I'm watching Pat Robertson on Hardball right now, questioning her intellectualism. I'll get a link when it comes up...I'm watching it live now.

Dang, she was Phi Beta Kappa out of Princeton...not only that, but *the* top student...what better evidence of intellectual prowess does she need?

LowlyPion
Homework Helper
Has anyone anywhere "fuss[ed] about her credentials"? The only "fussing" I see is about her activism.

So what if she is an activist? There's nothing wrong with that. The court could use a little empathy. I'd say maybe it needs a little liberal activism after suffering under the boot of Conservatives the last few years. Without activism blacks might still have to drink from their own water fountains and go to their own segregated schools. There might not have even been a President Obama.

Besides if you want to strictly construct the Constitution, it doesn't prohibit activism. It doesn't forbid empathy.

Republicans lost the election. Maybe they ought to accommodate themselves to this reality a little more gracefully?

LowlyPion
Homework Helper
Well I'm watching Pat Robertson on Hardball right now, ...

Pat Buchannan. Natural confusion. Both ideologues.

lisab
Staff Emeritus
Gold Member
Pat Buchannan. Natural confusion. Both ideologues.

:rofl:

Yup, you're right, haha, my mistake .

CRGreathouse
Homework Helper
Well that and they might have been able to torpedo the nomination.

They don't have the political capital to do that.

Dang, she was Phi Beta Kappa out of Princeton...not only that, but *the* top student...what better evidence of intellectual prowess does she need?

And people claim there is no discrimination any more in America. Can you imagine someone of a different sex or cultural background having her intelligence question with these credentials?

This is what makes my blood boil like a vineyard lobster. Pat Buchanan on Hard Ball had the nerve to say "I question her intelligence".

People have a problem with this statement:
"Our gender and national origins may and will make a difference in our judging," - Sotomayor

There's empirical evidence out of RMIT University (Australia) and Vanderbuilt University to support this statement, so how is it somehow "wrong"?

What I don't get is why this is an issue - really. Why are we so behind the rest of the Western World when it comes to certain things?

Countries like Sweden have an actual cabinet post dedicated to gender and human rights equality and justice:
http://www.sweden.gov.se/sb/d/2184 [Broken]

Finland elected a SINGLE, UNMARRIED MOTHER as head of state - not just once but twice (and she enjoyed record high approval ratings).

Finally, with regard to the firefighter case. It has occurred to me that this is an emotional not logical issue for some. And, like most emotionally charged issues, it proves challenging to separate the facts from the fiction.

I would encourage any/everyone with an open mind to INVESTIGATE THE CIRCUMSTANCES rather than relying on mass-media interpretations of the facts.

Of course, for those who would prefer to not see her nominated, there's no interest in that - to each his own.

However, what troubles me is that the less intellectual curious will rely on the Rush Dumbos of the world and Fox/Faux News rather than a balanced interpretation of the idiosyncrasies involved with the case.

Here's an interesting article I read, with original source linked:

The Sotomayor Mystery
Why didn't she explain herself in this year's big race case?

Judge Sonia Sotomayor is smart and sharp, and her formidable track record on the bench should put to rest any lingering doubts that she isn't. (Speaking of which: Why was the left, or at least the center, criticizing one of its own?) But there is a mystery in Sotomayor's recent history: a brief, unsigned opinion in the difficult race case now before the Supreme Court, Ricci v. DeStefano. Sotomayor punted when Ricci came before her, to such a degree that she raised more questions than she answered.

Ricci is a hard case with bad facts—a case that could do serious damage to Title VII, one of Congress' landmark civil rights laws. In 2003, the city of New Haven, Conn., decided to base future promotions in its firefighting force—there were seven for captain and eight for lieutenant—primarily on a written test. The city paid an outside consultant to design the test so that it would be job-related. Firefighters studied for months. Of the 41 applicants who took the captain exam, eight were black; of the 77 who took the lieutenant exam, 19 were black. None of the African-American candidates scored high enough to be promoted. For both positions, only two of 29 Hispanics qualified for promotion.

In other situations like this, minority candidates have successfully sued based on the long-recognized legal theory that a test that has a disparate impact—it affects one racial group more than others—must truly be job-related in order to be legal. You can see why New Haven's black firefighters might have done just that. Why promote firefighters based on a written test rather than their performance in the field? Why favor multiple-choice questions over evaluations of leadership and execution? It's like granting a driver's license based solely on the written test, only with much higher stakes.

Faced with these complaints, which translated into both political and potential legal fallout in a city that is nearly 60 percent African-American, New Haven withdrew its test. But that fueled an intense and also understandable frustration on the part of the white firefighters who'd spent time and money on test-prep materials. They'd succeeded by scoring high, only to be told that now their investment counted for nothing. Frank Ricci is a 34-year-old "truckie"—he throws ladders, breaks windows, and cuts holes for New Haven's Truck 4. His uncle and both his brothers are firefighters. He studied fire science at college. He has dozens of videos about firefighting tagged on a Web site he set up to recruit for the department. He is also dyslexic, which means that his high score on the promotion test was especially hard-won. Ricci and 19 other firefighters sued New Haven, alleging reverse discrimination, in light of Title VII and also the 14th Amendment's promise of equal protection under the law. They said that New Haven shouldn't have thrown out the test.

The district court judge who heard Ricci's case ruled against him and his fellow plaintiffs. They appealed to the 2nd Circuit, the court on which Judge Sotomayor sits. In an unusual short and unsigned opinion, a panel of three judges, including Sotomayor, adopted the district court judge's ruling without adding their own analysis. As Judge Jose Cabranes put it, in protesting this ruling later in the appeals process, "Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case. … This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."

If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes' ire, and he hung a big red flag on the case, which the Supreme Court grabbed. The court heard argument in Ricci in April. New Haven didn't fare well.

The high court's decision in the case will come in June, before Sotomayor's confirmation hearings. The problem for her will not be why she sided with New Haven over Frank Ricci. The four liberal-moderate justices currently on the court are likely to agree with her, in the name of preserving Title VII as a tool for fair hiring. There's even an outside chance that Justice Anthony Kennedy will follow along. The problem for Sotomayor, instead, is why she didn't grapple with the difficult constitutional issues, the ones Cabranes pointed to. Did she really have nothing to add to the district court opinion? In a case of this magnitude and intricacy, why would that be?

http://www.slate.com/id/2219037/

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Ivan Seeking
Staff Emeritus
Gold Member
An interesting observation wrt the SC: Given the current nomination, the court will consist of 6 Catholics, 1 Protestant, and 2 Jews.

misgfool
Finland elected a SINGLE, UNMARRIED MOTHER as head of state - not just once but twice (and she enjoyed record high approval ratings).

Who by the way was pro-Soviet, pro-DDR and is still anti-American. Irony of the ratings is of course that during her reign a new era of poverty is approaching Finland. Yes, there is a drawback in social democracy. Women hijack power. Also they are not the most competent ones.

I like her. She is sometimes liberal and sometimes conservative. That shows independence of thought. She also sticks to the law. Yes, she sometimes has said otherwise, but one needs to look at what a person does, not what they say and her rulings have been supported by law.

Basically, the Republicans have to reach to oppose her.

LowlyPion
Homework Helper
I like her. She is sometimes liberal and sometimes conservative. That shows independence of thought. She also sticks to the law. Yes, she sometimes has said otherwise, but one needs to look at what a person does, not what they say and her rulings have been supported by law.

Basically, the Republicans have to reach to oppose her.

It would seem to me that Sotomayor's decisions aren't necessarily inspiring. She's seemingly not demonstrably so Liberal. The decisions she's had overturned by the Supreme Court, apparently wouldn't have been if she was on the Court in place of one of the Republican clunkers. Viewing the corpus of her work then suggests she is not so far from the main stream.

Which makes it puzzling to me why the Republicans are going after her at all even. How can it be anything but a done deal?

And if in their wildest wet dreams they managed to scuttle her, what would they do if her name is withdrawn? They will have trashed a Hispanic? Trashed a woman? They will get someone who is less a Liberal? I mean really. The Republican Brain Trust is more over drawn than the US Treasury.

It would seem to me that Sotomayor's decisions aren't necessarily inspiring. She's seemingly not demonstrably so Liberal. The decisions she's had overturned by the Supreme Court, apparently wouldn't have been if she was on the Court in place of one of the Republican clunkers. Viewing the corpus of her work then suggests she is not so far from the main stream.

Which makes it puzzling to me why the Republicans are going after her at all even. How can it be anything but a done deal?

And if in their wildest wet dreams they managed to scuttle her, what would they do if her name is withdrawn? They will have trashed a Hispanic? Trashed a woman? They will get someone who is less a Liberal? I mean really. The Republican Brain Trust is more over drawn than the US Treasury.

The Republicans just need to look like they are doing something. Sotomayor is a disaster for them. One right wing group says too activist and another says she is not activist enough. They are not able to traction with this nomination. Obama is apparently as tricky as old Carl Rove. Maybe trickier.

russ_watters
Mentor
***
So your comment was completely baseless then? Is that what you are acknowledging by ignoring my question?
So what if she is an activist? There's nothing wrong with that.
Being an activist judge would seem to be a pretty obvious violation of separation of powers to me. The legislature writes the laws and the judges interpret them in the context of the Constitution. Being an activist judge means legislating from the bench or interpreting a law not in keeping with the intent of the constitution. Ie, usurping the power of the legislature.

And yes, that means if the Constitution has a flaw, USSC judges are not at liberty to correct it.
The court could use a little empathy. I'd say maybe it needs a little liberal activism after suffering under the boot of Conservatives the last few years. Without activism blacks might still have to drink from their own water fountains and go to their own segregated schools. There might not have even been a President Obama.

Besides if you want to strictly construct the Constitution, it doesn't prohibit activism. It doesn't forbid empathy.
Get off your soapbox. None of that has anything to do with the topic at hand - it's just pointless rhetoric.
Republicans lost the election. Maybe they ought to accommodate themselves to this reality a little more gracefully?
So when a party wins a 53% majority, the other party should just pack up and go home? C'mon, that's just silly.

russ_watters
Mentor
And people claim there is no discrimination any more in America. Can you imagine someone of a different sex or cultural background having her intelligence question with these credentials?
Can you provide any evidence that this has anything to do with discrimination?

Speaking of discrimination, what would people say if the single most critical factor in the selection of a justice was the sex of the candidate? Would people consider that to be discrimination against the other sex?

Is choosing a USSC justice largely on the basis of race and gender a step forward or a step backwards for equality in the US?
People have a problem with this statement:
"Our gender and national origins may and will make a difference in our judging," - Sotomayor

There's empirical evidence out of RMIT University (Australia) and Vanderbuilt University to support this statement, so how is it somehow "wrong"?
It is a reality of life that different people have different perspectives. It is "wrong" when applied to the duties of a judge. Judges are supposed to be impartial and faithfully interpret the laws/Constitution.
What I don't get is why this is an issue - really. Why are we so behind the rest of the Western World when it comes to certain things?

Countries like Sweden have an actual cabinet post dedicated to gender and human rights equality and justice:
The way to end discrimination based on race and gender is to end discrimination based on race and gender, not build it into the the government!
Finally, with regard to the firefighter case. It has occurred to me that this is an emotional not logical issue for some. And, like most emotionally charged issues, it proves challenging to separate the facts from the fiction.

I would encourage any/everyone with an open mind to INVESTIGATE THE CIRCUMSTANCES rather than relying on mass-media interpretations of the facts.

Of course, for those who would prefer to not see her nominated, there's no interest in that - to each his own.
Um, ok.... so what are we missing about the firefighter case? From what I've read (and your link tends to support this - it doesn't paint a favorable picture), this decision of hers is almost certain to be overturned by the USSC next month! and pundits are saying that the decision wasn't just wrong, but it was baseless. A real head scratcher. If that's not a major hit against her fitness for the job, I don't know what is!

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russ_watters
Mentor
....what would they do if her name is withdrawn? They will have trashed a Hispanic? Trashed a woman? They will get someone who is less a Liberal? I mean really. The Republican Brain Trust is more over drawn than the US Treasury.
For Obama, she's the perfect political pick. She's a woman, an Hispanic, and an activist liberal. Win, win, win.

As we've seen in this thread, republicans can't oppose a woman or minority without being labeled racist/sexist. The Democrats have the market on the racial rallying point cornered, even when it is baseless. That means that the Democrats can oppose minorities (see: Miguel Estrada, Clarence Thomas) without fear of fallout, while republicans get hammered for it. And as distasteful as judicial activism is to a lot of people, a liberal activist can get through due to the current state of public opinion. Obama's choice is pure politics.

A good commentary on the subject:
In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit.
http://www.cnn.com/2009/POLITICS/05/27/shapiro.scotus.identity/index.html

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