Maybe I’m Being Too Sensitive

But some of the comments on Judge Sotomayor’s nomination to the Supreme Court worry me. Is it a subtle and deliberate use of language? I’ll blog and you decide. Here’s from Yahoo News, I’m pasting the quotes, and boldfacing the possible code words and talking points.

“Senate Republicans will treat Judge Sotomayor fairly. But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law evenhandedly, despite their own feelings or personal or political preferences.” — Senate Republican leader Mitch McConnell, R-Ky.

Is it her democracy too? Will they speak slow and loud so she understands?

“We must determine if Ms. Sotomayor understands that the proper role of a judge is to act as a neutral umpire of the law, calling balls and strikes fairly without regard to one’s own personal preferences or political views.” — Sen. Jeff Sessions, R-Ala., the Judiciary Committee’s top Republican.

Would it kill Mr.Sessions to address her as Judge?

She must prove her commitment to impartially deciding cases based on the law, rather than based on her own personal politics, feelings and preferences.” — Sen. John Cornyn, R-Texas, member of the Judiciary Committee.

Will she ever be done proving?

And from ABC News…

And former Arkansas Gov. Mike Huckabee wrote (and since corrected) that the “appointment of Maria (sic) Sotomayor for the Supreme Court is the clearest indication yet that President Obama’s campaign promises to be a centrist and think in a bi-partisan way were mere rhetoric.

Interesting. When I watch the confirmation I’ll bring my secret decoder book.

20 thoughts on “Maybe I’m Being Too Sensitive

  1. Her worst problem is her own mouth,out of which have come statements that would be called racist,sexist,etc,etc if said by a White male.
    Secondly,she has been criticized very harshly by another appellate judge,also Hispanic,where he basically accuses her of not doing her job with sufficient effort.That is a rare and bad accusation from one judge to another.
    I think Obama likes judicial activism in spite of his protestations to the contrary.
    Her comments about about innate physiological and cultural differences among different ethnicities and genders influencing legal decisions sounds bizarre and reminiscent of eugenics promoters.
    Obama made it sound like she survived her upbringing to become successful as if it were a miracle.A lot of people of her background came from the same or worse circumstances and didn’t wind up in prison or on drugs,etc,and lived upright and productive lives.
    Her smartass tone of voice when discussing appellate courts making policy was disgusting-there is nothing remotely funny about perverting the Constitution.
    I am sure I will be told what a troglodyte I am by the usual suspects.

  2. I should have added an empirical point-she has been reversed on almost all her cases which went to the Supreme Court-not a good sign for judicial competence.
    I love you liberal/progessives-you claim to hate racial profiling and stereotyping,yet it seems like if someone fits the right template,they’re golden.
    Maybe some conservatives are also guilty of that.I try to avoid it,but I won’t back down from an honest opinion for fear of being accused of violating the politically correct mantra.

  3. Joe, can you count to two?
    Two, Joe.
    That’s how many cases she was on panel on, that went before the Supreme Court. Out of how many thousand of cases?
    As to the GOP talking point of “personal preferences”, I guess the only acceptable jurist for them would be a HAL 9000 computer…

    1. So you say-I heard a different numer-something like 5 out of 6,so I can’t be certain-but you sure seem to be.
      I guess her intemperate remarks don’t bother you in the least,so it’s clear where you’re coming from.
      I don’t like activist judges,especially if they wave the bloody flag over race and gender.
      I will probably not like anyone Obama appoints because I am 180 degrees away from his way of thinking and policies.

  4. In all the long history of our country, she would be the third woman to serve on the Supreme Court. She got where she is on her own merit, earning scholarships and excelling, graduating Summa Cum Laude. She has been warmly praised by many judges and legal experts.
    Yes, I am proud.

  5. One wonders at theuse of language: what does the term”Hispanic,” mean these days. The origin I suspect means “of Spain,” or “Iberia” and in this sense, was not Benhamin Cardozo (with family also named Mendes) actually the first “Hispanic” person on the Supreme Court.

    The current candidate’s primary problems are her lack of legal intellectual accomplishment, self-induced racist remarks (no matter how casual), a tendency toward superficial and not considered or reasoned decisions, and a very scarey tendency to “feel” rather than reason by law, her path toward decisions. O course, in these regards, she is very much in tune with the background of Mr. Obama, himself. Superficiality was never an enemy of politicians, however, whatever party.

    She can of course recant during the hearing process and she likely will, and will get the approval required.

    1. You know she’ll get in.The votes are there.It won’t change the balance on the court.Obama seems to be intent on appointing relatively young left wing activists to the bench.Jack McConnell is a good example.Obama has a long term strategy to do away with traditional America-what the replacemnt America will be is the big mystery.Obama knows he can’t shoehorn Congress on everything,like the recent Gitmo vote or the gun rights vote,so he plans to use an activist judiciary to effectuate his plan.

  6. I have to weigh in here. Amidst the comments of “left wing activists” and assertions that Sotomayer would “do away with traditional America”, I thought I should check her out. If this is true, she shouldn’t be able to get through homeland security at an airport, let alone sit on the Supreme Court of the United States.

    Oh yeah, it is also asserted that she lacks “legal intellectual accomplishment,” with “a tendency toward superficial and not considered or reasoned decisions, and a very scarey tendency to ‘feel’ rather than reason by law, her path toward decisions.”

    So, off to Lexis I went, eager to uncover the truth of this legal villianess. (Is that even a word?) I entered her name w/ no date restrictions and over 3000 hits came back. Way too many!!

    I limited the search from 01/01/2005 to 05/15/2009 and received 1541 hits. Let me be clear – I did not read all 1541 cases. I have a life. But I did look at some representative samples, secure in the knowledge that if there were any lack of judicial integrity, lack of intellectual heft, or a clear and present danger to “traditional America” it would show.

    Here is some of what I found:

    Unpublished opinions:

    Colon v. Holder, 2009 U.S. App. Lexis 10377. Upheld Board of Immigration Appeal’s decision that removed resident status of alien. Based on no evidence of alien’s assertion of memory loss relative to prior criminal conviction.

    Pena v. Drew, 2009 U.S. App. Lexis 10405. Upheld U.S. Dist. Ct’s denial of defendant/petitioner’s writ of habeas corpus, finding no due process violations.

    Duffett v. Lahood, 2009 U.S. App. Lexis 10357. Upheld U.S. Dist. Ct’s decision to reject employee’s age discrimination claim due to lack of evidence that employer’s actions were pretext for discriminatory animus.

    U.S. v. Miller, 2009 U.S. App. 10455. Upheld U.S. Dist. Ct’s order that defendant pay 20% earning from restitution finding no error on basis of District Court’s ruling.

    U.S. v. Alejo, 2009 U.S. App. Lexis 10102. Upheld U.S. Dist. Ct’s denial of defendant’s motion for reduced sentencing.


    Funici v. Mukasey, 301 Fed. Appx. 60 (2008). Upheld Board of Immigration Appeal’s decision to deny alien’s application for asylum due to inconsistencies in alien’s assertion of brutality, and newly raised claims that were not before the District Court.
    See also, B. Zhen Huang v. Bd. of Immigration Appeals, 301 Fed. Appx. 68 (2008).

    Barry v. New Britain Bd. of Educ., 300 Fed Appx. 113 (2008). Another rejection of employee’s age discrimination claim for failure to prove employer’s acts were “pretext” for discriminatory animus.

    U.S. v. Gadsden, 300 Fed. Appx. 108 (2008). Upheld U.S. Dist. Ct’s application of a two-level sentence enhancement to convicted drug dealer b/c he used a minor in commission of offense.
    Remanded to the District Court for re-sentencing consistent w/ revised Sentencing Guidelines and judgment of Kimbraugh v. United States, 552 U.S. 85 (2007).
    Supreme Court denied defendant’s writ of certiorari.

    I could review more cases. As exciting (or mind-numbing) as going through case after case can be, I think the above begins to refute assertions that Judge Sotomayer is a ultra-liberal threat to the very fiber of the republic, or that she’s some lightweight who wouldn’t know one end of the law library from the other.

    In all cases she applied an appropriate standard of review and applied the law in a fair and consistent way. We may not “like” some of her decisions, but so what? It isn’t whether we “like” or “dislike” the outcomes – what matters is the clear, consistent and competent application of law.
    She has demonstrated her ability to do just that.

    Wouldn’t anything less be “judicial activism”?

  7. I have to admire the effort you put into your response-it was way more than I would have bothered with.
    By the way my assertion re:traditional America was aimed at Obama,not Sotomayor.The man who has the hat is responsible for what goes on.
    I based my opinion on her un-judicial and frankly prejudicial statements and the unusual criticism from a fellow judge.
    I will watch the hearings and decide for myself because I don’t let radio hosts or tv talking heads make up my mind.
    For what it’s worth my wife is of the same background as this judge and grew up in similar circumstances except that her father was a sailor,not deceased,but nevertheless absent and her mother was mentally disabled to put it nicely.She and all her siblings grew up into successful people and none of them ever got so much as a moving wife has an entirely different take on being “of color” and the effect you should let it have on doing one’s job.She isn’t too happy with this pick.She also doesn’t understand why someone would be “proud”of a person they don’t know nor are related to simply because they are a woman,Latino,etc.
    I am a little more flexible on that point than my wife is.
    Breaking certain barriers does have a resonance.But the person who breaks the barrier should be of a quality that it means something,like Jackie Robinson or Colin Powell,not necessarily Barack Obama.

    1. Joe,

      Was this a “political” pick? Absolutely. Just as most picks for the highest court are. Did anyone believe him when George H.W. Bush called Clarence Thomas the “most” qualified person for the job? Was Warren a non-political pick? Brennan? Souter? Of course they were. It’s the nature of the game.

      Of course, what happens after the selection is what counts. Eisenhower once said the that biggest mistake of his presidency was his selection of Earl Warren for Chief Justice. William Brennan was supposed to be republican (moderate-conservative). John Paul Stevens is a “liberal” which is more indicative of the shift of the court than to any “epiphany” of Justice Stevens.

      My only point was that she does have a judicial record that – while we might disagree over the merits of specific opinions/rulings- is at least substantive. Contrary to the talking points issued to some and passed down the rest of us, she has had a distinguished career and does apply the law.

      A couple of other points – it’s not all together unusual that a judge will lay a smackdown on a judicial colleague. Read some of Justice Scalia’s opinions (particularly dissents earlier in his career) and you’ve got to admire the restraint of some of the justices not to get up and rip him in the mouth.

      Also, race and gender are still a part of the American scene and will be at least until both of us shuffle off this mortal coil.

      Finally, I’m old enough to remember Jackie Robinson. He was a sensation when he broke baseball’s color barrier, but wasn’t acknowledged as great until he had been in the league for a while. Obama’s been in office just over four months. Give him a chance and a little more time – he could emerge as the political equivalent of Jackie Robinson!!!

      1. ha-ha-I’m 62 and grew up not that far from Ebbets Field,but never set foot in the place.I was a (shhh)Yankees fan as a kid.Robinson,like most players took time to become a star,but he was a legit one through most of his career.
        Funny that no one remembers to mention Larry Doby,the first Black player in the American League.Cleveland.See,once the line is crossed,no one gives it that much thought later on.They find out the world didn’t end just because this or that person got a particular job.
        I don’t have a problem with Sotomayor being the first Hispanic SC justice.I just would prefer someone more conservative.I’m of Jweish descent and would love to see Breyer and Ginsburg off the court tomorrow.
        Personally I’d like to see Janice Rogers Brown on the court.She is a Black female federal judge with strong credentials as a defender of property rights.Not bad on gun rights either.That’s how I look at people.What they believe in.

  8. She will be okay in my book in the way she will interrupt the law as it will apply to the cases she sees. I believe that this is a wise choice for the Supreme Court. Rush Limbaugh and the rest of the Republican Cronies are already bad mouthing her before she is even heard before the Senate JUdicary.
    Judge Souter was a conservative when appointed to the court and he turned out to be more liberal than expected during his term in office besides he was brow beaten by the republicans when he voted certain ways on cases he handled and writing for the majority. Most republicans like Mitch McConnell; Jeff Sessions; John Cornyn & Former Governor Mike Huckabee Rush LimBaugh; Ann Coulter the nay sayers of the Republican Party they would like to see the Country under a Dictatorship run exclusively by the Republicans. If they and George W. Bush and Company hadn’t tried to away with the constitution while they had the reins for 8 years they wouldn’t be in the situation they are in today. But they wanted to override what the Constitution says and does for the American people like supposed to give a square deal for the average working man but became so greedy they collapsed the world economy along with our own. What they have done to America is nigh on to treason.

    Craig Close

    1. Craig-did you actually say “interrupt” the law above?I love it.I’m sure you meant “interpret”,but what you wrote might be more accurate.:)

  9. Thank you Geoff for your research and great information. And thank you Joe for keeping this lively.
    I was listening to NPR today and they did a retraction. They had reported that clerks for Sonia Sotomayor had described her as a bully. They had to correct that. The anonymous clerks actually worked for other judges. Her own clerks loved working with her. Today’s NYT has an editorial from a conservative law professor who clerked for her and he has nothing but praise and thinks she will make a fine supreme court judge.
    I’m posting this because rumors fly, but retractions get buried.

  10. She may be great in the supreme court, but I think its more than appropriate to wonder if she really “understands” that a judge is supposed to apply the law evenly to all racial groups. Does she really understand that legal decisions are not to be made based on race.

    Her own statements have made this a legitimate question and she has no one to blame but herself.

    “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,”

    “Whether born from experience or inherent physiological or cultural differences,” she said, for jurists who are women and nonwhite, “our gender and national origins may and will make a difference in our judging.”

    And of course a nice quote Obama made about his grandmother:

    “The point I was making was not that my grandmother harbors any racial animosity, but that she is a TYPICAL WHITE PERSON. If she sees somebody on the street that she doesn’t know – there’s a reaction in her that’s been bred into our experiences that don’t go away and sometimes come out in the wrong way and that’s just the nature of race in our society”

    I don’t understand when it became okay for people to say things like this. I’m 38 years old, and as far as I can remember, it was never okay for anyone to say things like this. Forget about politicians or supreme court nominees making comments like this, it would be career ending.
    Imagine if a white politician referred to someone as a “typical black person” or said that as a “white male” they would make better decisions than a hispanic female.

    As a white guy, I’d be fired from my job and labeled a racist if I made similar comments, even as a joke. Now as a society we both allow and disregard it when people seeking our highest offices and positions of power blatantly make these comments.

    Is it nice to have George Bush out of office, yes it is. But that doesn’t mean that we need to forget whats right and wrong.

    If she doesn’t want to be suspected of being racially motivated, she shouldn’t make stupid statements like she did. I would hope that someone being considered for a seat on the supreme court whould know the inappropriate nature of those types of comments and not make them.

  11. Joe, I have no problem with you being a conservative. I have many friends who are conservative and we have great, productive – and yes – civil discussions. One thing I’ve discovered over the years is that when people of good will approach common problems in good faith, anything is possible.

    And you’re right, nobody remembers Larry Doby.

    But I’ve got to say – Yankees? I don’t know…….

  12. Unfortunately numbers mean little in court actions that are rquired by law, and all sitting judges are required to act on thousands of matters brought before them at any level, state or federal. In point of fact, local magistrates are likely the most overlooked and act on thousands of matters each year. Similarly, federal judges have staffs of law clerks who do most of the leg work although it is the judge who makes the ruling uner his or her name. There is nothing special about this judge in terms of numbers or content of cases;they are federal in nture. The unseemly “special” matters are those of frankly racist remarks, lack of judicial temperment noted by other judges, superficiality of deisions and a lack of a body of substantive intellectual decisions. Again, this is not the first “Hispanic” candidate, and indeed Cardozo (with family ties to “Mendes,” etc., would be the first Hispanic, I assume by definition of the term. Cardozo of course is noted for the intellect he brought to the bench in New York State and the Supreme Court, and by the way apparently never graduated from law school (he seems to have dropped out of Columbia).

    Political opportunism and superficiality are the modus operandi that has brought a legion of idiots to the wrong jobs at the wrong times. It is almost as if the Carter administration had be reborn; this is not Harry Truman at the reigns, but there would not be room for Truman Democrats in the leftist mindset that now dominates.

    1. I don’t want to pick nits, but I’m not sure what you mean by, “Unfortunately numbers mean little in court actions that are rquired (sic) by law, and all sitting judges are required to act on thousands of matters brought before them at any level, state or federal.” This seems inconsistent with your assertion that Sotomayer lacked, “legal intellectual accomplishment.”

      First, I would assert that numbers and variety of cases do matter. It’s over the span of time that judicial temperament begins to show. And even a cursory reading of Judge Sotomayer’s decisions shows that she is qualified for the position. You (or I for that matter) may not like some of her decisions, but that’s another matter. What isn’t in dispute, no matter how it is attacked, are her legal qualifications for the job.

      If your assertion is that she is no Benjamin Cardozo, that may or may not be true and remains to be seen. Cardozo, when he was on the New York Court of Appeals, was as much a legal scholar as he was a jurist. Perhaps more to your point, there is nobody currently on the court who is a “Benjamin Cardozo.” If Cardozo is the standard, then I suggest that, with the possible exceptions of Scalia (with whom I just about disagree with everything save his first amendment positions), Breyer, and Ginsburg nobody on the current court comes close to meeting that standard. That’s not to belittle anyone currently serving; it’s merely to point out just how exceptional Cardozo was.

      As an aside, Mendes is a common Portuguese, not Spanish name.

      You are correct when you state that Cardozo left Columbia without a law degree. The reason is that when he entered Columbia Law School, it was a two year program. During his tenure as a law student, the faculty agreed to extend the program by an additional year. Cardozo decided not to stay the extra year and left after two – thus no degree. However, it should be noted that he entered Columbia University’s undergraduate program at the age of 15 – additional proof of his being an exceptional person.

      While I’m here, a couple of more comments. I agree that many local magistrates labor unknown and unsung in legal vineyards throughout the country. And while I truly believe that there’s no such thing as a minor legal issue (they’re all major to the people involved), there’s a world of difference in the complexities of cases normally before local courts and those normally before the 2nd Circuit Court of Appeals.

      As for federal courts using clerks to do the “leg” work, you must remember that an appeals court, with a few exceptions, decides cases on their legal merits, not their factual merits. As such, there is more research required, thus the need for the clerks. You make it sound as if the clerks do the research, put their conclusions before the judge, who as a fait accompli signs off and issues an opinion. That’s insulting to a lot of hard working judges on the federal bench.

      You harp on this “lack of judicial temperment (sic) noted by other judges, superficiality of deisions (sic) and a lack of a body of substantive intellectual decisions.” You offer nothing more than invective. It’s time to offer some substantive support for your assertions. I really would like to know what it is that supports the above quote. In other words, it’s time to walk the walk, or stop talking the talk.

      Finally, relative to political opportunism, you don’t need to go back to the Carter administration for that!! Going back 12 months ought to do it.

      And by the way, Harry Truman is one of my favorite presidents. At least on that we agree.

  13. You know, Joe, you really gotta stop repeating Rush Limbaugh’s droppings. He gets paid way more than enough to spread his own layer(s) of manure.

    All of your comments are straight off the Republican talking points, as dictated by the Grand Old Poobah of the Grand Old Party, His Lordship Lord Limbaugh.

    As such, whatever you say is not even worth refuting.

  14. I don’t listen to his show.You are so full of crap that I really don’t know why I answer you.The last time I listened to Limbaugh was just after Clinton was first elected.You think you know a lot more than you do.I came to these conclusions from listening and reading.You’re like a Chatty Cathy Doll,to quote Steve Martin speaking to John Candy-just pull the string and out spews party line garbage.

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