Sotomayor LAW ’79 nominated to Court

President Barack Obama on Tuesday nominated federal appeals court judge Sonia Sotomayor LAW ’79 to the Supreme Court.

If confirmed, Sotomayor would be the first Hispanic justice to serve on the high court, and only the third woman. She has served on the New York-based United States Court of Appeals for the Second Circuit since 1998 and has heard several controversial cases, including Ricci v. DeStefano, the reverse-discrimination case about a promotion exam for the New Haven Fire Department.

President Barack Obama applauds his nominee for Supreme Court Justice, Appeals Court Judge Sonia Sotomayor LAW '79, in the East Room of the White House on Tuesday. Sotomayor, if confirmed, will serve as the first Hispanic justice on the Supreme Court.
Saul Loeb
President Barack Obama applauds his nominee for Supreme Court Justice, Appeals Court Judge Sonia Sotomayor LAW '79, in the East Room of the White House on Tuesday. Sotomayor, if confirmed, will serve as the first Hispanic justice on the Supreme Court.

The Ricci case is posed to become a pivotal one during Sotomayor’s confirmation process, as the Supreme Court is currently deciding the reverse-discrimination suit.

Sotomayor, 54, would replace Justice David Souter, who announced his retirement last month. The Yale Law School alumna would join two other Elis — Clarence Thomas LAW ’74 and Samuel Alito LAW ’75 — on the Supreme Court.

“My heart today is bursting with gratitude,” Sotomayor said from the White House lectern after Obama announced her nomination.

In his announcement, the president called Sotomayor “an inspiring woman,” and said she has “faced down barriers” and “overcame the odds” in her journey from a Bronx housing project to two elite universities, Princeton and Yale, and then to the federal bench.

Sotomayor is the daughter of Puerto Rican parents and was raised in the South Bronx. After her father died when she was eight, Sotomayor was raised by her mother, whom she credits for pushing her to go to Princeton, where she graduated with honors in 1976. After graduating from Yale Law School, where she was an editor of the Yale Law Journal, Sotomayor served as an assistant district attorney in New York County under Robert Morgenthau LAW ’48.

Sotomayor reflected on that journey in her remarks on Tuesday. “I strive never to forget the real world consequences of my decisions on individuals, businesses and government,” she said.

Both of Connecticut’s senators praised Obama’s choice on Tuesday, saying they look forward to the Senate’s consideration of Sotomayor’s nomination.

“President Obama has promised to bring change to Washington and he continues to do that with his choice for Supreme Court Justice,” Sen. Chris Dodd said in a statement. “Judge Sotomayor is a highly qualified and historic nominee.”

In a separate statement, Sen. Joseph Lieberman ’64 LAW ’67 added: “Judge Sotomayor’s career represents the best of the American dream, and she possesses distinguished and superior legal credentials.”

Senate Minority Leader Mitch McConnell, Republican of Kentucky, said Tuesday that Senate Republicans would treat Sotomayor “fairly.” But he also said that Obama’s nominee would receive all due scrutiny.

“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,” he said, “despite their own feelings or personal or political preferences.”

Comments

  • George Patsourakos

    Yale can be proud that President Obama nominated Sonia Sotomayor LAW'79 to be a justice of the Supreme Court. America can also be proud of this nomination because -- if confirmed by the U.S. Senate -- Sotomayor would become the first Hispanic justice to serve on the Supreme Court. Indeed, if Sotomayor is confirmed by the U.S. Senate, America will have the most diverse Supreme Court in its history.

  • Recent Alum

    Unbelievable that she is still considered a viable candidate after Ricci v. DeStefano. Who's next, Harold Koh for SCOTUS?

  • ct

    another poor pick by zerOBAMA. i really regret voting for him. Sonia is a proven racist, just look up the lawsuit she denounced in New Haven, CT. she stands up for anyone who is not Caucasian.

  • T.R

    I guess if the Courts is the place where policy will be made. Then can we save money and get rid of the Senate and Congress?

  • Yale law grad

    Sonia Sotomayor is a fantastic choice, and a real credit to YLS. Among her colleagues and the lawyers who appear before the Second Circuit, she is known as brilliant and meticulous. She consistently gets to the heart of the matter, doesn't go off on philosophical frolics, sticks to the law and the facts. As someone put it to me today, she is "a lawyer's lawyer, a judge's judge." She will bring a lot to the high court.

  • Yale law grad

    Also re Ricci: It's sad to me how badly people misunderstand this case, because they don't understand (or just don't agree with) the Civil Rights Act of 1964. Title VII of that act prohibits the use of tests that have a "disparate impact" against any racial group, unless those tests have a "business necessity." Here, while in previous years the City had used tests that did not have a disparate impact, this year the test did. Unlike other tests from other years, this time, blacks came out badly enough that the City determined it would be liable under Title VII for using a test with a disparate impact. Apparently the city did not think it could really justify this particular test in terms of "business necessity" -- it had various questions like whether you are supposed to park your fire engine facing "uptown" or "downtown" (?) that were not applicable to New Haven, and the City had not done any validation procedure for the test but just went ahead and used it. Facing a possible lawsuit, the City's Civil Service Board deadlocked 2-2 about whether to certify the test results. That led to no certification. Before the City could put together a new test, Ricci and some other white firefighters sued, claiming that it was race discrimination for the City to try to comply with Title VII. (Actually, I think a lot of their claim had to do with the allegation that this all had nothing to do with Title VII but was racial patronage politics. But the trial judge found no evidence to support that accusation.)

    New Haven has a long history of race discrimination in firefighting -- against blacks. That's exactly the kind of history that Title VII is there to disrupt. The conservatives on the U.S. Supreme Court will try to use this case to hack away at Title VII's disparate impact provision. That's what some conservative judges on the Second Circuit tried to do too. That's their perogative. But Sonia Sotomayor and the majority of the Second Circuit just followed current law in holding that if New Haven was indeed trying to comply with Title VII as it now stands (and that's what the trial judge found), then it was not violating anyone's rights. You may not like it, you may agree with the conservatives that the law should be changed, but don't try to hang Sonia Sotomayor for following existing precedent. Under existing law, this was not a hard case. She and the other judges found that the trial judge, Janet Arterton, had written a solid opinion, so they just wrote a short opinion basically saying she got it right.

    Although people may find the white firefighters sympathetic characters (especially Ricci, who spent a lot of time and money studying for the original, flawed test), that's not what law is about. Sonia Sotomayor's job on the Second Circuit is to follow precedent, not reach out and make law, and that is what she and the other judges did.

  • 1Y1

    Well this is going to get ugly. She's qualified, so I don't agree with the people who will inevitably call this flawed affirmative action.

    That said, her involvement in this ridiculous firefighting case is really awful. Yes, her appointment would be historic and a point of great pride… but let's not ignore her despicable "reverse racism" in that particular case because of it.

  • Yale 08

    Why is diversity something to be praised on the Supreme Court?

    I can tolerate a modicum of diversity-hype for legislators.

    A judge should be completely race blind.

  • CT Law

    To#6 Yale law grad:
    Why did so many justices want an en banc review? Was it because the court failed to provide any legal analysis to the underlying questions of constitutional and statutory law?

  • Yale 10

    Yale 08,

    If all judges up until now were picked in a "race-blind" manner, do you really think there would be 8 white justices?

    "Race blind" and "colorless" are just two PC ways of saying "white."

  • Yale law grad

    To #9: No. The six conservative justices on the Second Circuit wanted en banc review because they disagreed with the result, found Frank Ricci a very sympathetic plaintiff, and therefore wished to use this case as a vehicle for making a radical change to the law of Title VII.

    The quick one-paragraph disposition was not unusual at all: it simply reflected the conclusion of the three-judge panel (and the seven more liberal judges on the Second Circuit as well) that the trial judge in this case did a careful job and got it right. When the trial judge's reasoning is more or less what the Second Circuit would say too, they often do one of these short one-paragraph things praising and incorporating the trial judge's reasoning as their own. That's all that happened here. The huffing and puffing from Judge Cabranes (dissenting from the denial of rehearing en banc with the rest of the conservatives) was simply a (successful) attempt to get the Supreme Court to grant cert.

  • Jerry Smith. Class of '61

    According to Nina Totenberg of NPR there were some additional names that were never included in most MSM reporting. Among them was another Yale Law School Graduate, Nora Demleitner, 42, currently Dean of the Hofstra University Law School on Long Island. Even though she is a liberal, she testified for Samuel Alito at his confirmation hearing. She had served as a law clerk to Alito when he was on the Court of Appeals.

    I must admit my bias as she is married to my nephew. However, she has all the qualifications that President Obama was looking for.

    I also have a suggestion for Yale President Levin: Please make sure the search committee for a dean to replace Harold Koh considers Dean Demleitner of Hofstra.

  • Yale 10

    CT Law,

    No, it was because the case was similar to nearly all the other such cases, most of which were unsigned opinions.

    see further,

    http://www.scotusblog.com/wp/?s=sotomayor

    Stop using repudiated legalistic arguments to disguise racial or gender animosity.

  • A.

    What kind of axe job is this?
    "Sotomayer Sides With the Cops"
    http://www.slate.com/id/2219251/
    There's no mystery when you're actually smart enough to figure out what's wrong. Then there can be no reason for others to dissent.

  • Terry Hughes

    #6 (and #11?) Yale law grad -

    It's pretty clear from the Supreme Court oral argument record on Ricci that the Court is going to overturn the 2d Circuit. The reasons for that coming reversal are also pretty clear in that recording. So is the fact that regardless of how the case is or should be decided, it is anything but the application of settled 2d Circuit law that you suggest and Judge Sotomayor’s supporters insist justified her absurd one paragraph “opinion.”

    Here's an oral argument transcript for you to read:
    http://alexwdc.wordpress.com/2009/05/31/ricci-v-destefano-supreme-court-has-provided-transcripts-of-the-oral-argument/

    New Haven has an obvious need for an effective competency test. Whatever "disparate impact" means, it does NOT mean what you suggest it means: That a facially neutral test can be administered with employees relying on the results for their promotions, and then discarded unilaterally by the employer without any showing that the disparity was somehow racially linked, merely because in that single administration of the test minorities did not do as well as somebody hoped. If that were the standard, then "disparate impact" would amount to nothing but authorization of municipal quotas by another name and validation of the exact kind of racial bias that federal law prohibits. Dream a better dream.

    Of course, readers of these comments have no way of knowing if "#6 Yale law grad" is the same person as "#11 Yale law grad," or that either of them is actually a Yale law grad at all. But questions certainly must be asked about someone (or two) who dismisses a well argued dissent of a well respected, liberal, Hispanic, Clinton-appointed judge as "huffing and puffing," and absent mindedly and without a groat of support characterizes Judge Cabranes as one of "six conservative justices on the Second Circuit [who] wanted en banc review because they disagreed with the result, found Frank Ricci a very sympathetic plaintiff, and therefore wished to use this case as a vehicle for making a radical change to the law of Title VII." For one thing, 2d Circuit judges are always just that: judges, never "justices." If Yale law grads don't know that, the school has big problems. Of course, if Yale law graduates now think Judge Cabranes is a result-oriented, hufffing and puffing conservative, and advance substantive arguments as empty as yours, the YLS problems are even deeper. (I am not saying OTHER arguments might not prevail in obtaining the same result, of course.)

    But, somehow, I don't think the cause of these particular problems lie with the Yale Law School. One way or the other, #6 and/or #11 Yale law grad, you are a not what you want to appear to be.

  • serious skeptic

    Yale 10 -

    The point of the SCOTUS Blog post to which you link [http://www.scotusblog.com/wp/?s=sotomayor] seems to be that there is some real doubt as to how Sotomayor would rule on Constitutional abortion cases or at least that her mind is somehow open to pro-life (as well as pro-choice) arguments. Anyone seriously believing such things should contact me immediately about purchasing a bridge in Lower Manhattan. I can offer a discount.

    The "reasoning" in that SCOTUS Blog post can be summarized as follows: Sotomayor has not participated in a case requiring her seriously to consider or reconsider any Constitutional law pertaining to abortion not clearly settled. Therefore "Judge Sotomayor’s opinions and rulings in this area … aren’t driven in any respect by a broader pro-choice or pro-life ideology." Please. The only thing that records shows is that Sotomayor is not a pointless and flagrant defier of settled law. Her opinions say nothing of significance about Constitutional abortion rights so one's "impression" should be that she wouldn't be driven as a Supreme Court Justice in any respect by pro-choice ideology? That's not SCOTUS Blog "reasoning" there, that's a bad practical joke.

  • Time out

    Yale law grad -

    You say Judge Cabranes is a "huffing and puffing" conservative? That's bizarre nonsense. Cabranes was a founding member of the Puerto Rican Legal Defense and Education Fund and also served as Chair of the Board of Directors of ASPIRA, an organization that helps inner-city Hispanic youth. President Jimmy Carter (that noted arch-conservative) nominated Cabranes to the United States District Court (he was unanimously confirmed), thus becoming the first Puerto Rican to hold this position in the continental United States. Bill Clinton huffed and puffed and nominated Cabranes to the Second Circuit, based in New York, and his nomination was AGAIN confirmed unanimously by the U.S. Senate. Cabranes was the first Hispanic judge to serve on the Second Circuit and second Puerto Rican named to any U.S. Court of Appeals, after Juan R. Torruella.

    George Stephanopoulos wrote in his autobiography "All Too Human: A Political Education" that Cabranes was considered by President Clinton for appointment to the seat on the Supreme Court that went to Ruth Bader Ginsburg. Media accounts reported that Cabranes was also considered for the vacancy created by the retirement of Justice Harry Blackmun, which was filled by Stephen Breyer. Incidentally, Cabranes is married to a Yale law professor and is a former general counsel of Yale University.

    Does that read like the history of a "huffing and puffing" conservative (whatever that is)?

  • Recent Alum

    Yale law grad: Cabranes is a liberal judge. The only judge on the Second Circuit who arguably qualifies as a conservative is Judge Richard Wesley, and even he is fairly moderate. I understand that you are trying to redefine the center around your own views, which may work for you when your audience is limited to the likes of Harold Koh and his followers at YLS, but this kind of rhetoric is not going to be taken very seriously by more well-informed YDN readers.

  • Yale law grad

    Hello #15 & #17. If you reread my sentence above at #11, I didn't describe Judge Cabranes as a "huffing and puffing conservative." That would be silly and inflammatory; it's your phrase, not mine. But make no mistake: Cabranes is very conservative. You're right that he wasn't always -- certainly not at the time he was appointed or elevated. But if you look at the history of Second Circuit en banc votes over the past decade, there is a very clear, consistent pattern in which Cabranes generally sides with the conservative appointees of George W. Bush (Raggi, Wesley, Hall, and Livingston) and the one remaining George H. W. Bush appointee (Chief Judge Jacobs), against all the Democratic appointees. The Clinton appointees with the exception of Cabranes (Calabresi, Pooler, Sack, Sotomayor, Katzmann, and Parker [who was originally nominated by Clinton, although renominated by Bush in a good-faith gesture after the Senate blocked his confirmation]) all go the other way. This isn't some biased gloss on the way the votes go - read them for yourself! If you talk to any Second Circuit law clerk, they'll tell you this same basic breakdown. If you look up Second Circuit en banc cases on Westlaw, you'll see a little variation from case to case, but this breakdown is fairly stable. Just like the Supreme Court, the Second Circuit has a conservative bloc and a liberal bloc, and Cabranes, although he was once more liberal, is now FIRMLY in the conservative bloc, especially in the more highly politically charged cases like Ricci. (Indeed the lineup of judges I just described is the precise lineup in Ricci, unsurprisingly.) Anyone who wants to claim Cabranes is a "liberal" on the basis of some very old history has to contend with the fact that he doesn't vote like a liberal, and hasn't for many years. (His marriage to Kate Stith, while hardly relevant to the question in any case, certainly does not support the false suggestion that Cabranes is "liberal": Stith is a well-known and important conservative scholar.) As to #18's comment that only Judge Wesley "qualifies as a conservative" (!) that hardly deserves a response, except to point out that if judges like Reena Raggi et al don't count as conservative, then neither does John Roberts. Your world must be the kind of place where the Supreme Court is full of "liberals" too, and only Scalia and Thomas carry the true conservative flame, or something.

    I also think it's completely fair to say, as I did above, that Cabranes' dissent from the denial of rehearing en banc in Ricci constitutes "huffing and puffing" to get the attention of the Supreme Court. Judge Cabranes knew VERY well that the panel in Ricci had done nothing unusual. As discussed in Judge Calabresi's thoughtful and honest concurrence in the denial of rehearing en banc, it is really not the role of the Second Circuit to try to reach out and make new law when it doesn't have to. In this case, if the district judge's findings are correct (and the Second Circuit is required to defer to those findings) then the City was simply trying to comply with Title VII. That's settled law. You may disagree with it, but the Second Circuit has no legitimate role in gutting Title VII just because it doesn't like the way it makes this case come out. And that is the extremely activist thing that the six conservative judges on the Second Circuit, led by Judge Cabranes, wished to do. And perhaps it is what the Supreme Court will do - I agree with you that the oral argument (which I read the day it was released) certainly sounds like that's the way the Court is headed. Nonetheless, it would have been an act of unconscionable judicial activism for the Second Circuit to reach out and start gutting Title VII in order to protect a sympathetic plaintiff like Frank Ricci. Judge Sotomayor deserves credit for being part of a panel that resisted the impulse to engage in activist, results-oriented decision-making, and instead simply followed the law as it currently stands. The Supreme Court has some more flexibility to overturn its past precedents, but the Second Circuit must follow the law. In this case, that's just what they did.

  • Sotomayor fan (YLS '07)

    This discussion of Ricci is interesting, but it's straying a bit from the topic of the article.

    YAY for Sonia Sotomayor! She will be a fantastic Justice.

    Just wanted to get that in there.

    It seems to me the only political question left, this summer, is whether the Republicans decide to shoot themselves in the foot with Hispanics for decades to come by blasting this brilliant, moderate-to-liberal, highly experienced Yale graduate as some kind of crazy "racist." We'll see!

  • Former clerk for a different judge

    Anyone who says Cabranes is a "liberal" obviously has no idea what he or she is talking about. Go read some of his opinions on any of the more "political" topics before his court, and see for yourself.

  • anon

    Hopefully Sotomayor and the other moderate/liberal members of the Second Circuit will overrule the insanely right-wing decision of Judge Cabranes in the Maher Arar case (decided last June, over a strong dissent from Judge Sack, and now being reviewed en banc). A Canadian government inquiry revealed that Arar, a Canadian whom the U.S. arrested and sent to Syria for interrogation and torture, was completely innocent and had no involvement with Al Qaeda. It was just a tragic mistake. Nonetheless, Judge Cabranes managed to find, through a tortuous reading of the relevant statutes, that Arar cannot sue the United States for what we did to him (or that U.S. federal courts have no jurisdiction to adjudicate such a claim). Judge Cabranes' opinion came down a year ago; the en banc oral argument on whether to overrule his opinion was in December, but there's still no opinion out. (for the original Cabranes opinion, see http://ccrjustice.org/files/Arar%20Court%20of%20Appeals%20Decision.pdf).

    For more on the Arar case see http://ccrjustice.org/ourcases/current-cases/arar-v.-ashcroft

    Of course, I'm sure some of the right wing YDN commenters like "Recent Alum" will say that whatever the law says, anyone our government says is a "terrorist" should have no rights. Hopefully Sotomayor and the Supreme Court will not see it that way.

  • Terry Hughes

    #19 "Yale law grad"

    You wrote: "If you reread my sentence above at #11, I didn't describe Judge Cabranes as a 'huffing and puffing conservative.' That would be silly and inflammatory."

    I reread your sentence, but that makes me wonder if you read what you wrote (and I quote): "The huffing and puffing from Judge Cabranes (dissenting from the denial of rehearing en banc with the rest of the conservatives."

    Your rehearsal of 2d Circuit just shows that you classify judges by their results. The "results oriented" flaw you attribute to the 2d Circuit conservatives seems to be mostly projection.

    The Ricci case was not determined by settled 2d Circuit law,at least not in the way you argue, because the 2d Circuit has never authorized perverse municipal racial quotas under color of federal civil rights laws. The dissenting 2d Circuit judges saw that and the Supreme Court is about to confirm it. On the other hand, I do not expect understanding from somebody who denies that the smear "huffing and puffing from Judge Cabranes (dissenting from the denial of rehearing en banc with the rest of the conservatives" calls Judge Cabranes a "huffing and puffing conservative."

    And I still don't believe that you graduated from YLS.

    Cheers!

  • Terry Hughes

    Hey, #21 (Former clerk for a different judge), as you requested I read some of Cabranes' opinions and saw for myself that he's an intelligent, coherent liberal/moderate who doesn't use strained disingenuous reasoning to stretch the law. What should I do now?

    And, #19 ("Yale law grad"), as you suggested, I talked to some Second Circuit law clerks, but they don't agree with you that Cabranes is "very conservative" (in fact, they laughed out loud at the suggestion) or that the 2d Circuit has the kind of "conservative bloc" that you posit. They all asked me to ask you which "conservative" Senators were supposed to have advanced all of those "very conservative” judges from the "conservative" 2d Circuit states. I couldn't think of such a senator. Can you?

    And #22 (Sotomayor fan), it would be helpful if you could identify any particular act of "brilliance" from Sotomayor, since the New York Times (that bastion of the conservative media bloc) couldn't find any hint of that take among her colleagues. I have a rather different opinion of Judge Sotomayor than yours. In my opinion someone who repeatedly says in public that her own gender and race make her judicial decisions better than those of judges not of her particular gender and race, and who belongs to a secretive, elite, gender-discriminatory group, is creepy.

    Between 1994 and 2003 Sotomayor many times said in prepared public statements that "a wise [Latina] woman" should "reach a better conclusion than a white male" judge. She and her supporters are busy prevaricating about her views, but the fact is many of her public addresses, including addresses at Yale and elsewhere included such claims. Did anyone at Yale object at the time?

    Sotomayor retains membership in the "Belizean Grove," an elite, rich-and-powerful women’s-only group deliberately modeled on the egregious all-male "Bohemian Grove," but she claims her decisions are soaked with "empathy" for the kind of common people excluded from that club. Could any of the Ricci firemen have joined the Belizean Grove? Or are the Ricci firemen too male, ordinary, powerless and underpaid to join the club to which the woman who dismissed their complex, difficult civil rights case with a one-paragraph empathy-free opinion so proudly belongs? Creepy.

    She does not belong on the Supreme Court. But if Sotomayor is confirmed, as it now appears will be the case, her supporters will very likely come to regret her appointment deeply. It's one thing to make asinine "wise Latina women are better" claims from the relative obscurity of the 2d Circuit, but there's no reason to think she'll stop bloviating to everyone's continuing embarrassment once she's on the Court. A virtual Joe Biden in a black gown. And her dissents! Her dissents! One can hardly wait! As you said, we'll see!

    Cheers!

  • The Kibitzer

    When President Bill Clinton nominated Cabranes to serve on the U.S. Court of Appeals in 1994, he said, "Judge Cabranes has an outstanding record of achievement in the legal profession, in academia, and in public service." This record has been recognized by a number of organizations: Cabranes has received the John Jay Award from Columbia University for "personifying the ideals of American democracy and representing the very best of the federal judiciary"; the Connecticut Bar Association's highest award, given to the Connecticut judge who "epitomizes long-term, dedicated and conscientious service to the community in a judicial role"; and the Federal Bar Council's Learned Hand Medal for Excellence in Federal Jurisprudence.

    Just passing it on! "Result oriented?" "Huffing and puffing?" There seems to be a lot of interest in Cabranes here. Just one question: Shouldn't the people most dismissive of Cabranes and most willing to characterize his actions as lacking in judicial rigor be themselves questioned about their own potential bigotry in dissing this distinguished Hispanic jurist? If not, why not?

  • anon

    @25: I didn't start the discussion of Cabranes. I actually don't know why you guys are all talking about him. But as long as you are, I want to clarify that I am not at all "dismissive" of his opinion in Maher Arar.

    The opposite: I think it's a very important, very scary opinion that should not be dismissed lightly, but studied carefully. It is an amazing example of how a conservative judge bent on denying standing to a torture victim can find a way to read that result into a statute that was SPECIFICALLY WRITTEN to allow claims against the U.S. government for victims who were tortured by foreign governments like Arar.

    I am not questioning that Cabranes is a smart judge, but I hope that the rest of the Second Circuit, including Judge Sotomayor, will overturn his extremely conservative reading of the statute when the en banc decision comes down.

  • Feeding the troll, against my better judgment &#40

    To "Terry Hughes" (#24 etc): I really shouldn't egg you on by offering a response to your somewhat unhinged partisan attacks on Judge Sotomayor. They always say "don't feed the trolls", and you certainly seem to be trolling… but for some reason I can't resist offering you one obvious piece of advice.

    There are lots of ways you might attack this nominee's jurisprudence. But you don't enhance your credibility when your chosen line of attack is to paint her as some kind of "creepy" "elite" "rich-and-powerful", out-of-touch limousine liberal who doesn't care about "ordinary, powerless and underpaid" folks and is somehow racially biased against whites. That line of attack just makes you look stupid. Either you're copy-and-pasting talking points from one of the less impressive right-wing hack sites, or you've just decided to use the strategy of saying up is down and black is white, and hoping nobody notices.

    I'm sure you've read the many profiles of this judge that every paper is now reporting and printing. So you're obviously aware she's the kind of judge who has never forgotten her working-class roots - the rare judge who always gets to know the blue-collar workers, the janitors, the guards, the whole spectrum of people who work with her in the court system - and whose friends, unusually, span the racial and class spectrum. She's the kind of judge who devotes time and energy beyond her judicial work to helping poor and working class kids learn to think about the law and becoming lawyers. Before she was a judge she used to work on affordable housing; before that she was a gritty New York City prosecutor, helping keep poor neighborhoods safe by locking up criminals. It's just not the profile of some "creepy" "elite" liberal, or anything close to it. As to the charge that she's biased against whites, that's too stupid to even discuss. I'll just point out the obvious: her most famous dissent in a race case ever is her dissent on behalf of a white, racist New York City employee who was fired for sending racist literature through the mail - she would have held that his speech was protected by the First Amendment and that he should keep his job. (The case is Pappas v. Giuliani.) Or if you prefer numbers, SCOTUSblog surveyed her race-related jurisprudence and found that she rejected race-based discrimination claims by a margin of 8 to 1; in the few opinions in which she ever favored a race discrimination plaintiff, the panels were almost all unanimous and almost all included Republican-appointed judges. Unless you have some other, killer evidence to pull out of your hat, to attack her as biased against whites is just not even close to being credible.

    What I think you're trying to do is blow up your personal view of Ricci into some overall critique of Judge Sotomayor. As one smart young Yale Law School professor constantly says of legal arguments like that: "that dog won't hunt."

    Stick to reality-based lines of attack, and I promise, you'll convince more people.

  • Terry Hughes

    Well, not even the New York Times reporter seems to be buying the canard that Ricci was decided in accordance with settled 2d Circuit precedent. In fact, on the whole the Times seems more sympathetic to Judge Cabranes' approach and indicates that the one-paragraph opinion resulted from the failure of the 3-judge panel to agree. In other words, Ricci was seen as anything but an easy "by the settled precedent" case. That would mean that the Ricci opinion was a serious abuse of summary disposition protocol, and not at all what Sotomayor's defenders have been asserting:

    "Catherine O’Hagan Wolfe, the clerk of the court, said in an e-mail message that such an order 'ordinarily issues when the determination of the case revolves around well-settled principles of law.'

    The Ricci case does not meet that standard, Judge Jose A. Cabranes wrote for himself and five other judges in a dissent from the full court’s decision not to rehear the case. The questions posed in the Ricci case, Judge Cabranes wrote, were exceptionally important 'constitutional and statutory claims of first impression' — meaning ones where no binding precedent exists.

    "The district court judge in New Haven, whose opinion the appeals court panel affirmed and adopted, did identify three earlier Second Circuit decisions concerning the use of race by the government in hiring and promotional exams. But they did not involve precisely the same issues."

    Here's the link:

    http://www.nytimes.com/2009/06/06/us/politics/06ricci.html?_r=1

  • Terry Hughes

    Ok, #27, I give up: What is the point of the scare quotes around my name in your post? Remember, YOU'RE the one without a name here, not me. And have you CHANGED your non-name, "Yale law grad?" Naughty, naughty. Ha, ha, ha!

    Let's see, about your argument: Lots of name calling. Behold: "… egg you on … unhinged partisan attacks … just makes you look stupid … copy-and-pasting talking points from one of the less impressive right-wing hack sites … saying up is down and black is white … too stupid to even discuss… ‘that dog won't hunt’ …Stick to reality-based lines of attack …"

    No need to add much to that! The language refutes and discredits itself. Of course, there is that New York Times article I linked to above that points out how bizarre Sotomayor's Ricci actions and opinion really are.

    Federal judgeships, including life tenure, was designed in part to deliberately insulate those judges from the kind of political forces (and factions and empathies) that the Framers instead intended the members of the House of Representatives to, well, represent. The Framers didn't fail, and federal judges are TERRIBLE empaths, regardless of their political views or pretentions to the common touch. Sotomayor is no exception. The Framers intended federal judges to concentrate on, well, getting the law right and being judges.

    If you went to Yale Law School, you would know that, of course. Then again, if Yale Law School professors are using phrases like "that dog won't hunt" without irony these days, maybe you do belong there! But I don't think so.

    If you come up with an actual justification for Sotomayor belonging to a gender-discriminatory group of the rich-and powerful expressly modeled on the Bohemian Grove (including why such a membership is not creepy), let us all know. Ditto if you find an actual reason (no names, now!) why belonging to such a group isn't laughably inconsistent with an opportunistic claim to "empathy" for the "working class." Don't hold back for a moment.

    Of course, Sotomayor's infamous and savage demeanor on the bench is not exactly easy to square with an "empathetic" personality. I don't hear a lot of "empathy" in the Ricci oral argument recording. Her words and tone on that recording do bring "screeching" and "bullying" mind, but not "empathy." The Times article notes that what niceties there were in Sotomayor's oral comments were not reflected in the opinion, but the Times does say that the single paragraph "did strike a note of empathy, though one couched in a double negative: 'We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated.'” Get that? The opinion says "we are not unsympathetic to the plaintiffs’ expression of frustration" and then supplies no reason at all for stripping this dyslexic fireman of the promotion he worked for so hard with a single paragraph opinion not in the least consistent with 2d Circuit policy for summary dispositions! That's the sole trace of Sotomayor's brand of "empathy!" And then her supporters … including you … attack Judge Cabranes for pointing that out. It's hilarious. Not empathetic, of course, but dark humor. Still, hilarious. That wise Latina in the richness of her experience is a real card!

    There's a nice little snack for you to chew on, little troll! Munch, munch.

    Ciao bella!

  • JR

    Whew! I doubt too many people are going to read down this far. But if anyone who is reading this is seriously interested in the Ricci case and the issues involved, whatever your views you should definitely read this article in Slate:

    http://www.slate.com/toolbar.aspx?action=print&id=2219062

    by Richard Thompson Ford.

  • Terry Hughes

    Well, JR, most observers of the Supreme Court's oral argument in Ricci seem to agree that the 2d Circuit decision will almost certainly be overturned. But it's just a wee bit dramatic to claim that the Supreme Court is going to "burn down civil rights law" in a few weeks. But burnings (especially crosses) sell pseudo-analytic liberal magazines the way on-screen fireballs sell bad action movies.

    The 2d Circuit's errors in Ricci lie at least as much in its grossly unempathetic and inappropriate use of a one-paragraph summary disposition of a complex case of first impression as in the 2d Circuit’s result. For pointing that out, the excellent Judge Cabranes has found himself perversely savaged as "result oriented" by Sotomayor supporters. Cabranes dissented from the MINDLESSNESS of the 2d Circuit opinion.

    Richard Thompson Ford's Slate article to which you link confidently assigns a particular intent to Sotomayor in connection with that opinion: "Sonia Sotomayor rejected the New Haven firefighters' claim because it threatened to burn down civil rights law." But the 2d Circuit opinion consists of exactly one opaque paragraph, and the New York Times reports (1) Sotomayor probably didn't write the opinion (the Times says the style isn't "bureaucratic" enough for Sotomayor to have written it), (2) the most likely reason for the summary disposition was that the 3 judge panel could not agree on an analysis, and (3) Sotomayor's oral comments are not reflected in the language of the opinion. Given all that, just how did Richard Thompson Ford determine Sotomayor intent?

    The 2d Circuit certainly did not have to adopt the plaintiffs' argument wholesale in order to send the case back to the district court with guidance or even to affirm with an analysis provided. But the Slate article suggests such utter adoption (and the supposed consequent "burning of civil rights law") as the only alternative to a mindless summary disposition not consistent with normal 2d Circuit policy.

    In fact, Justice Kennedy provides a relatively clear, if brief, account of a middle position in the recording of the Supreme Court's own oral argument in Ricci. If the Supreme Court follows his lead and his approach is fleshed out a bit, Ricci will be reversed, the district court will be given the kind of guidance the 2d Circuit should have provided, and no 2d Circuit precedent will be overturned except, of course, the reversed Ricci decision itself. There are of course other approaches to reversing the 2d Circuit and upholding Congressional intent.

    Civil rights law will not burn because the 2d Circuit is forced to actually do a real day's work writing an opinion with more than one paragraph, or because Mr. Ricci has his day in court, or even because he gets the promotion he has worked so hard to achieve. Yes, Sotomayor's credibility and her ludicrous claims to "empathy" will be scorched more than a bit. Quite a way to join the Supreme Court. No doubt she will provide more such expensive entertainment as the years role by. Maybe not as good entertainment as a bad action movie provides, but entertainment none the less.

  • CT Law

    Terry,
    Thanks for the cogent analysis. This has been a worthwhile thread.

  • Not "CT Law"

    Ha. I assume that "CT Law" is either kidding, or a friend of Terry's. This thread has gone totally off the rails.

    If you are interested in reading the views of a conservative non-lawyer who doesn't like Sonia Sotomayor, but at least has bothered to read her opinions and based his conclusions on that, read <http://www.nytimes.com/2009/06/09/opinion/09brooks.html&gt;.

  • Terry Hughes

    # 33

    Your link to David Brooks’ apologia for Sonia Sotomayor is curious indeed. Abandoning one of her supporters' more absurd arguments that she is “brilliant,” Brooks admits Sotomayor is just a "careful-though-unspectacular jurist." Wonderful. He makes her sound like the G. Harold Carswell of the left.

    Brooks also abandons any attempt to "contextualize," explain or justify the bizarre identity politics claims she has made in many speeches. He frankly admits that her speeches say exactly what her critics claim they say when he writes:

    "[Sotomayor] has given a series of speeches that have made her a poster child for identity politics. In these speeches, race and gender take center stage. It’s not only the one comment about a wise Latina making better decisions than a white male; it’s the whole litany. If you just read these speeches you might come away with the impression that she was a racial activist who is just using the judicial system as a vehicle for her social crusade."

    What to do? Well, Brooks says we should change the subject. The speeches are a disaster for Sotomayor, so they don't matter. Is it the opinions that matter? As you admit, David Brooks is not trained in the law, and it shows in his failure to understand the many dangerous flaws in Sotomayor's opinions, flaws that go far beyond civil rights law. And he admits it: "I’m obviously not qualified to judge the legal quality of her opinions." He's right!

    But the brilliant legal scholar Richard Epstein IS qualified to judge the legal quality of her opinions, and he notes, for example, that:

    “[The] expansive reading in Kelo v. City of New London (2005) of the 'public use language' [of the Fifth Amendment] … was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion--one that makes Justice Stevens look like a paradigmatic defender of strong property rights. … The case involved about as naked an abuse of government power as could be imagined."

    Kelo was the case in which the Supreme Court expressed its particular brand of empathy by allowing the government to take people's homes by eminent domain to benefit a drug company. That brand of judicial "empathy" didn't go far enough for Sonia Sotomayor, who signed on to yet another summary disposition endorsing "about as naked an abuse of government power as could be imagined."

    Having admitted he’s unqualified to advance his “whole picture” argument, Brooks sites to his ultra-liberal and biased "Times colleague Adam Liptak" and Tom Goldstein SCOTUSblog study of Sotomayor's race-related opinions. But the methodology of that study has been debunked many places, including here [http://legalinsurrection.blogspot.com/2009/05/sotomayors-damned-statistics.html]:

    "[In connection with Cass Sunstein’s study of Alito's opinions] Sunstein went on in the letter to explain that while analysis of dissents may have some value, the analysis of majority opinions has little value as a predictor of how a Supreme Court Justice would vote once elevated to the Supreme Court … Ted Kennedy … took Sunstein's analysis, without mentioning the limitations and caveats, to argue that Alito would be hostile to individuals …. Goldstein's analysis clearly is well-intentioned, but also subject to differing interpretations…. [Following] Ted Kennedy's interpretation of statistics for Samuel Alito, one also could conclude that Sotomayor is hostile to minorities and racial discrimination claims. Hogwash. There is nothing in Sotomayor's background to suggest such hostility, which simply proves the point that these sort of statistics are meaningless."

    Read the whole thing to understand how absurd Goldstein's approach really is.

    But that kind of thing doesn't stop Brooks when he smells a real career enhancing opportunity! Brooks is an opportunistic non-conservative who says he was liberal until 1983 when he experienced a conservative "revelation" while debating Milton Friedman, a "revelation" that just happened to open some real career opportunities at the National Review, then his employer. Before the Iraq War Brooks was for it, but by spring of 2004 he had already cooled. More opportunities!

    A "conservative?" Brooks proposed the "McCain-Lieberman Party", viscerally detests Sarah Palin (a "fatal cancer"), insists the Republican Party distance itself from "outdated" minimal-government conservative principles of Ronald Reagan (they've "served their purposes"), thought the United States was "in the middle of an amazing moment of improvement and repair" in 2005 and favors same-sex marriage. He's endorsed Obama's ludicrous pseudo-stimulus pork spending. Even Pinch Sulzberger understands that Brooks is not a conservative: This New Republic article describes the Times’ hunt for a real conservative columnist: http://www.tnr.com/politics/story.html?id=7b687811-caed-4ded-bda3-66d9c1b11f71.

    None of that makes David Brooks a bad person. But it does make anyone who looks to Brooks' column for reasoned, principled thinking naive … to say the least. I’m going to overlook your unsupported and near paranoid suggestion that CT Law (aka #32), who is completely unknown to me, is a “friend” of mine. Get a good night’s sleep, you may feel better in the morning!

    Ciao bella, #33! Hugs and kisses!

  • Recent Alum

    #33: David Brooks is most definitely NOT a conservative.

  • wow

    Wow. This is far off topic, but you two guys (34&35) are frankly crazy if you think David Brooks is not a conservative. He's as conservative as Edmund Burke! (And no friend of Sotomayor, obviously.) Anyway, you can't dispute that Brooks is a Republican.

    If you right-wingers don't want him and other moderate conservatives like him in your party anymore, I guess you're doomed to have a very, very small party for a long time to come. Sheesh.

  • Recent Alum

    #36, given that David Brooks supported Obama (the most liberal presidential candidate in history) over John McCain (the most liberal Republican presidential candidate in history), yes, I am pretty sure I can say with confidence that he isn't a Republican or a conservative.

  • wow again

    This is just hilarious. David Brooks: protege of William F. Buckley at the National Review, writer for the right-wing Washington Times, op-ed page editor for the Wall St. Journal, Senior Editor of the Weekly Standard since the day it was founded; Iraq war hawk, longtime McCain supporter, and self-declared Republican even today (despite the Republican party's leap off the Sarah Palin cliff, which was apparently too much for this moderate Republican last fall).

    Far be it from me as a Democrat to tell you who counts as a Republican, "Recent Alum." If you don't want him, we'll take him. In fact, we'll take all the moderate Republicans and moderate-to-conservative independents like him too. We've got a big tent over here, and it seems to be getting bigger all the time, while yours is getting so small you can't even find room for all the current senior editors of your movement's major publications (like the Weekly Standard)… yikes!

    Frankly, opposing Sotomayor is part of this story of the ever-shrinking Republican tent. Sotomayor is a moderate, unobjectionable judge. Trying to call her "racist" and paint her as out of the mainstream is the tactic of a rump party, trying to rally an ever-smaller base of mostly Limbaugh listeners and Southern evangelical white men. Going after Sotomayor makes no sense to moderates, independents, and the vast majority of Americans. Good luck with it. I hope the right-wing elements of the Republican party manage to throw enough of a hissy fit to ensure that Hispanic voters remember exactly what you said and did to this good judge for a long, long time.

  • Terry Hughes

    #38 (wow again) wrote "Far be it from me as a Democrat to tell you who counts as a Republican…"

    Nobody here has been discussing whether Brooks is a Republican. The issue is whether he is a conservative. Brooks is an eclectic and opportunistic moderate who may or may not be a registered or unregistered Republican. He seems to be well intentioned if opportunistic, but he is not a conservative.

    That Brooks has held significant positions within conservative organizations and was mentored by William Buckley does not demonstrate his "conservatism," but that conservatives respect competence and do not demand as much personal political "solidarity" from those with whom they associate to the extent now the case with liberals. Brooks has identified the liberal problem himself when he wrote in the Atlantic Monthly: "[A]ny registered Republican who contemplates a career in academia these days is both a hero and a fool." Ironically, Brooks now finds himself in the role of the pet pseudo-conservative at the liberal New York Times, but even the Times recognizes that Brooks is not a conservative columnist (as noted above).

    For example, Buckley invited Brooks to work at National Review at a time Brooks was known to Buckley as an admitted liberal. Brooks' says that his conversion to relative economic conservatism only occurred later, during a public debate with Milton Friedman in which Brooks realized that Friedman kept demonstrating that Brooks liberal ideas were misguided.

    As the term "conservative" is generally used in this country by people across the political spectrum, Brooks is not a conservative of either the "economic" or the "social" conservative stripe. For the most part people who ever refer to Brooks as a "conservative" are liberals making the point that even some "conservatives" support a particular liberal position, and Brooks is often there to be the pseudo-example. But he does not fit the definition of a "conservative" used even by such liberals. Ofr course, there is a minority of ultra-liberals who call anyone not in their camp a "conservative" - but that is specialized argot, not general usage.

    As noted above, Brooks insists the Republican Party distance itself from "outdated" minimal-government conservative principles of Ronald Reagan and endorsed Obama's "stimulus" pork spending (even calling those who opposed it "insane"). Whatever effect Friedman once had on Brooks has obviously faded and Brooks is no "economic conservative" (if he ever really was one).

    Nor is Brooks a "social conservative," as evidenced by his characterization of Palin as a "fatal cancer" on the Republican Party and his endorsement of gay marriage. There’s lots more evidence for anyone who chooses to go by what Brooks writes and apparently believes rather than defining him by his formal associations and employers … which at most make him a conservative fellow traveler.

  • James Tiberius Madison

    Someone is saying that David Brooks a conservative Republican? Earlier this week Brooks - who, of course, is famously a big defender of gay marriage - appeared on MSNBC. Here's part of the transcript, which pretty well demonstrates that Brooks is now certifiably insane and certainly no conservative Republican by any normal definition of that term:

    O’DONNELL: What, what’s happened?

    BROOKS: You know, all three of us spend a lot of time covering politicians and I don’t know about you guys, but in my view, they’re all emotional freaks of one sort or another. They’re guaranteed to invade your personal space, touch you. I sat next to a Republican senator once at dinner and he had his hand on my inner thigh the whole time. I was like, ehh, get me out of here.

    HARWOOD: What?

    BROOKS: I can only imagine what happens to you guys.

    O’DONNELL: Sorry, who was that?

    BROOKS: I’m not telling you, I’m not telling you. But so, a lot of them spend so much time needing people’s love and yet they are shooting upwards their whole life, they’re not that great in normal human relationships. And so, they’re like freaks, they don’t know how to, they’re lonely. They reach out. I’ve spoken to a lot of young women who are Senate staffers and they’ll have these middle age guys who are sort of in the middle of a mid-life crisis. Emotionally needy, they don’t know how to do it and sort of like these St. Bernards drooling everywhere. And you find a lot of this happens in mid-life and among very powerful people who are extremely lonely.

    O’DONNELL: Can I ask one other question David? Do you think, what about female or women politicians? Are they dignified and are there examples of when they have not? Or does it tend to be the men who less dignified?

    BROOKS: Yeah, I think that’s mostly a matter of genetics. I do think that…I do think there’s loneliness.

    O’DONNELL: That was just a softball, David, and you really hit it very well.

    BROOKS: Yeah, I wish I could think of sort of St. Bernards, sloppy women who are licking their aides, but but no, I can’t think of any.

    HARWOOD: I’m not going there.

    O’DONNELL: Did you have a couple drinks at lunch, David? I mean, this is clearly.

    BROOKS: No, you’ve hit me…I’m trying not to be too dignified and stuffy.

    O’DONNELL: Well, David Brooks as always, thank you very much. That was a lot of fun. You may not have gotten best column of the week, but you got best appearance of the week, certainly.

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