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The Four Likely Lines of Attack Against Sonia Sotomayor

Posted May 26, 2009 7:54 AM CST
By Debra Cassens Weiss

"Ideologues" are likely to advance four lines of attack against federal appeals judge Sonia Sotomayor when confirmation hearings are held, likely in the third week of July, according to a frequent U.S. Supreme Court litigator.

Obama nominated Sotomayor to the Supreme Court in a press conference this morning.

Mainstream Republicans are unlikely to risk political capital on opposing a nominee who would become the first Hispanic on the Supreme Court, litigator Thomas Goldstein writes on SCOTUSblog, the blog he created. But extreme public interest groups that depend on controversy to raise funds have an interest in caricaturing the nominee, he says.

Goldstein sees these possible lines of attack:

1) Sotomayor is not smart enough, a claim likely to be “stated obliquely and only on background.” The claim isn’t true, according to Goldstein. She graduated from the top of her class at Princeton and went on to attend Yale Law School. Her opinions are well-reasoned and clearly written. “Nothing suggests she isn’t the match of the other justices.”

2) Sotomayor is a judicial activist. Goldstein says SCOTUSblog’s review of Sotomayor’s judicial opinions shows her to be “on the left of this Supreme Court, just not the radical left.”

3) Judge Sotomayor is dismissive of positions with which she disagrees. This line of attack will include references to a speech in which Sotomayor said the ethnicity and sex of a judge “may and will make a difference in our judging” and to another speech in which she acknowledged that federal judges effectively make policy. Goldstein’s conclusion: “There just isn’t any remotely persuasive evidence that Judge Sotomayor acts lawlessly or anything of the sort.”

4) Sotomayor is too gruff and impersonable. Goldstein says his impression from her questioning at oral arguments is that Sotomayor, a tough questioner, is similar to Justice Antonin Scalia and, when he is engaged, the justice she will replace, David H. Souter.

Comments

1.

B. McLeod
May 26, 2009 8:09 AM CST

And inside the city, a fifth column?

(There are Republicans, and then, there are Republicans).

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2.

J.D.
May 26, 2009 8:15 AM CST

I guess the Founders would be considered “ideologues” because of their support of the Constitution and a non-law-making judiciary.

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3.

R
May 26, 2009 9:36 AM CST

Sotomayor is a terrific, smart choice.

Remember our last President who, left to his own devices, chose Harriet Miers?

It’s so great for our country that we have a competent, confident, engaged President again - even if we don’t necessarily agree with his political viewpoints.

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4.

AndytheLawyer
May 26, 2009 9:39 AM CST

JD—nice try, but Sotomayor has authored around 150 appellate opinions and been reversed only 3 times.  I’d say that’s a history of respecting and following stare decisis, not of substituting ideology for the law.

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5.

JR
May 26, 2009 9:56 AM CST

In light of today’s 5-4 decision allowing police to question suspects after they ask for a lawyer, we need more judges like Sonia Sotomayor.  She has “real world” experience and would realize that such a ruling would allow police to pressure citizens into talking.  Despite Scalia’s theorizing, the court did damage to Miranda.  Perhaps the five know it and just want to fool the public.  In any case, Judge Sotomayor will have a great career on the Court.

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6.

B. McLeod
May 26, 2009 9:57 AM CST

So there!

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7.

T.R.
May 26, 2009 9:58 AM CST

I am not keenly up on her particular jurisprudence, but she certainly has the right resume for the SCOTUS job.

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8.

associate
May 26, 2009 10:47 AM CST

Really?

I’d attack her on her rendered opinions:

States can completely ban all firearms; the second amendment does not apply to them.

Discrmination is legally acceptable; if an advancement test does not produce the desired racial results, an employer can change it and retest (vermont firefighters).

Who cares about her personality?  Her disdain for the republic and misapplication of the law are much stronger reasons for her disqualification to me.

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9.

DR
May 26, 2009 11:41 AM CST

#8:  The discrimination case involved New Haven, Connecticut firefighters, not Vermont firefighters.

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10.

J.D.
May 26, 2009 11:49 AM CST

Andy, again, that’s not a counterargument. But like you said, “Nice try.”

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11.

B. McLeod
May 26, 2009 12:21 PM CST

Hey, DR’s using facts!  Is that fair?

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12.

kennyg
May 26, 2009 12:25 PM CST

Whatever your opinion,would you agree that by beginning with the term Ideologues, the Author is kind of showing her hand here?

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13.

DR
May 26, 2009 12:43 PM CST

Ha, ha B. McLeod!  Facts are such handy little tools.

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14.

Dan
May 26, 2009 12:45 PM CST

So your response to these “lines of attack” (or, if you weren’t biased against them, “concerns”)  is to say “nah uh” and plug your ears? 

ABA once again shows where its bread is buttered.  This is why I don’t pay my dues.

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15.

Dave
May 26, 2009 12:45 PM CST

“I guess the Founders would be considered “ideologues” because of their support of the Constitution and a non-law-making judiciary.” 
As I recall it, the Founders were proud to be considered “liberals”.

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16.

Jim +
May 26, 2009 2:30 PM CST

IMO, she is a great choice. The Redding oral argument documented that we can use another woman on the court.

One who can survive the South Bronx, Princeton and Yale has an outstanding foundation. Then add the experience of corporate, prosecution, USDC to her CCA experience, I think she’s a winner.

We ALL can sing R&H’s West Side Story’s.‘I like to be in America ....” on this nomination.

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17.

Chester
May 26, 2009 2:35 PM CST

So the ABA Journal publishes articles that are nothing more than a recap of the opinions of a lone goofball blogger?

What a very impressive publication!

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18.

Maven
May 26, 2009 4:47 PM CST

Just as I couldn’t in good conscience support a white, male nominee that said “white males make better decisions that hispanic women”, I cannot support Sotomayor, who said “hispanic women make better decisions than white males”.  Pea-brained racial bigotry is repellent no matter who’s doing it.

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19.

Greg F
May 26, 2009 6:57 PM CST

“Just as I couldn’t in good conscience support a white, male nominee that said “white males make better decisions that Hispanic women”, I cannot support Sotomayor, who said “Hispanic women make better decisions than white males”.  Pea-brained racial bigotry is repellent no matter who’s doing it.”
Pea-brained racial bigotry? Oh actually recognizing that people growing up with different racial backgrounds views the world in a different light. I am willing to bet that a rich white privileged male looks at a the world differently than a poor Hispanic woman that rose to the top. Diversity of views strengths the court. Who knows a Hispanic women maybe more qualified to make decisions that affect race.

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20.

Timothy Shaw-Zak
May 26, 2009 7:58 PM CST

“Judge Sotomayor is dismissive of positions with which she disagrees. .... “There just isn’t any remotely persuasive evidence that Judge Sotomayor acts lawlessly or anything of the sort.””

Why is it that I so often find such sophistry coming out of lawyers?  Could it be that they have earned their reputation of intellectual dishonesty?

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21.

WSJ
May 26, 2009 11:14 PM CST

JR- Are you suggesting that she has experience being arrested and/or questioned by cops?

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22.

B. McLeod
May 26, 2009 11:56 PM CST

WSJ, I was giving you the benefit of the doubt on the wingnut question.  Thank you for resolving the issue.

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23.

GrzeszDeL
May 27, 2009 8:57 AM CST

I guess the Founders would be considered “ideologues” because of their support of the Constitution and a non-law-making judiciary.

I feel embarrassed to have to explain this to a lawyer, but the Founders set up a common-law judicial system in this country.  It is the nature of a common-law system that the judiciary makes laws, so I really cannot understand what you mean when you claim that the Founders established a “non-law making judiciary.”  If the Founders had really wanted a “non-law making judiciary,” they would have set up a civil-law judiciary, like they have in France or Mexico or Québec.

Those who complain about “legislating from the bench” really need to stop griping about this or that judge and instead go to the root cause of their discontent.  If you want a civil-law judiciary, then you need to write to your congressman and ask him or her to begin the process of amending the Constitution to replace our common-law system with a civil-law system.  So long as the common-law remains in place in this country, however, it is fatuous to complain of “judicial activism” because the law-making judiciary is the very essence of a common-law system.

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24.

zymlaw
May 28, 2009 10:35 AM CST

Thank you, ABA, for presenting such a thorough and well-researched article.  Give the thoughts of one left-wing “litigator” and avoid presenting any facts to the contrary. 

And GrzeszDel - there’s a difference between expounding on precedent (the common law system) and legislating from the bench (bypassing the legislature).

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25.

PamA
May 28, 2009 1:41 PM CST

#16: West Side Story was written by Leonard Bernstein, the late composer and conductor, lyrics by Sondheim and roughly based on Shakespeare’s Romeo and Juliet. The song you reference is titled, simply, “America.”
#24: judges can’t act in a vacuum—most try to work within the confines of the legislated law, some recognize that those laws are outdated, badly worded/vague/ambiguous or outright wrong when put into practice and so they exercise a little integrity and power to do the right thing. Rather that kind of judiciary then a bunch of rule-following automatons on the bench just rubber stamping the legistlature’s sometimes poor work product….

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26.

Jose
May 29, 2009 6:16 AM CST

Maybe she can be the one to give all the latino migrant workers who are slaves to the white man amnesty and their freedom from their oppresive masters.

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27.

tim
May 29, 2009 6:18 AM CST

We all know the judges make the law.  Why do we fight about it?  9 old men and women in robes know what is best for us.

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28.

silencedogood
May 29, 2009 6:50 AM CST

Anyone trying to argue that Judge Sotomayor is not a bigot is really picking the wrong fight. 

Her comment that a latina woman’s opinion is inherently better than a white male’s and that we should basically not even try to be impartial is indicative of what’s wrong with current thought on “diversity” and just political cover for reverse racism. 

Her comment assumes her experience is more valuable, no one who is white can have similar experiences or different ones of equal or greater value, and seems to assume color automatically grants diversity of thought.  All of which is incorrect and wrong. 

I’ve travelled to all seven continents.  I’ve worked in nine countries extensively and lived in three.  I speak three languages.  And I did not grow up rich by any stretch yet am very successful.  Yet Sotomayor would judge me on sight by my skin while at the same time crapping on my experiences and culture.  I’m sorry but there are plenty of ignorant people in every race, education, and income level as she demonstrates perfectly. 

Identity politics are a farce (Do I love Jimmy Carter just because he’s white?  No.) and it will lead to the erosion of what makes America great. 

Perhaps in this instance Chief Justice Roberts, despite being a white male(!), has hit the nail on the head when he said the best way to stop discriminating based on race is to stop discriminating based on race.  Period.  Full stop.

Accordingly, if you would not support Scalia if he made this comment in his confirmation and would use it as a basis to deny confirmation you should not support Sotomayor.  Otherwise we should probably just drop the pretense of justice, reason, fairness, impartiality and committment to ideals and start reproducing for electoral supremacy.

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29.

Ex IL
May 29, 2009 7:38 AM CST

Technically, Sotomayor is not the first Hispanic Supreme.  That designation goes to Benjamin Cardozo, the jurist who wrote an opinion in the famous Palsgraf case.

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30.

huntervanv
May 29, 2009 7:51 AM CST

#16, West Side Story was by Berstein and Sondheim, not Roger and Hammerstein.

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31.

Treble
May 29, 2009 8:03 AM CST

#29 - Cardozo was Portuguese - not Hispanic.  My husband’s take is that if you’re from the Iberian Peninsula, you’re not Hispanic.  If you’re several ancestors removed (i.e., Spain to Bolivia) you’re Hispanic. 
I think race/ethnicity are important to world view but even more so when coupled with poverty and struggle as well.  Ms. Sotomayor did not say her perspective was better, but rather, different.

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32.

huntervanv
May 29, 2009 8:03 AM CST

The charge of “judicial activism” is always leveled by the right against judges who make decisions more in keeping with the generally “liberal” positions, namely, in favor of abortion rights, suspect-friendly due process questions, consumer rights to sue corporations, etc.  If we looked at the term objectively and based it on the number of times a judge voted to overturn a state or federal statute, i.e. revoke the will of the legislature (and the people)  then Thomas and Scalia are the most “activist” of the 9, with Ginsburg being the least.  Unfortunately, the facts have a liberal bias.

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33.

hrb
May 29, 2009 8:08 AM CST

I hope the Republicans pursue the “not smart enough” angle. How would they explain what Clarence Thomas has been doing for the last decade or so?

You get the Coke and I’ll get the popcorn - this is going to be a very good show.

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34.

Chicagoatty
May 29, 2009 8:19 AM CST

As a number of your commentators observe, an article that begins by labelling anyone who challenges Judge Sotomayor’s nomination as an “ideologue” is biased from the start.  The “four lines of attack” are then presented as weakly, and as embarrassingly nittily as possible.  There are really two fundamental questions for Judge Sotomayor: (1) does she believe that a judge’s power to overturn legislative choices is constrained by our written Constitution; and (2) why did she describe judging in racial, ethnic and gender terms (when she said that she would hope that a wise Latina woman would render a better decision than a white male)?  What did she mean by that?  As to the first question, there is a legitimate debate about the scope of judicial review, and conservatives consistently argue that judges may not “legislate from the bench” by overturning our democratic choices unless the Constitution demonstrably invalidates the legislation.  (This has nothing to do with a court’s common law powers, contrary to the argument of a previous commentator.)  As for the second question, many of us (not just the “ideologues”) would vehemently object to any version of the rule of law that has cases coming out differently depending on the race or ethnicity of the judge or the parties.  What does “equal protection” mean, if not color blind justice?  There is nothing wrong with asking Judge Sotomayor to explain her previous statements and to clarify where she stands on this.  If she really believes that we should assign outcomes based on race, then the Republicans would be right to oppose her with everything they have.

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35.

AndytheLawyer
May 29, 2009 8:29 AM CST

Answering chicagoatty— Sotomayor’s comments about how appellate judges make law is no different from Scalia’s comments over the years to the same effect.  They’re both right.  As long as Congress enacts statutes that don’t cover every imaginable situation or dispute, courts will be needed to fill in the blanks.  Congress then can change the law if it doesn’t like how the courts have ruled.  the recent Lily Ledbetter employment law is an obvious example.  There’s nothing particularly liberal, conservative or activist (within either framework) about any of this.

Sotomayor’s comment that a judge’s background inevitably will have influence on some deciisons is no different from Sam Alito’s comments to the same effect during his own confirmaiton hearing.  If you didn’t mind his acknowledgement that his background as a New Jersey Italian-American has impacted his own thinking and decisions, then you should have no problem with Sotomayor’s acknowledgment that hers as a Bronx Puerto Rican has had the same impact.

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36.

Chicagoatty
May 29, 2009 8:57 AM CST

Andythelawyer: You are right, as far as you go, but I think you sidestep my points.  My points were (1) directed to judicial nullification of statutes (or state laws) on purported constitutional grounds, not statutory interpretation, where the entire enterprise is an attempt to effectuate the will of the legislature; and (2) whether Judge Sotomayor was merely observing the obvious (as you do) that who we are will, inevitably affect how we see things, or something more ominous - that it is somehow desireable to consciously take account of a judge’s or a party’s group status (race, gender, socio-economic group).  In a country subject to the 14th Amendment Equal Protection Clause and to the rule of law, I don’t think that it is acceptable to say that “white males make better judges,” or that “Latina women make better judges.”  I am not accusing Judge Sotomayor of anything; but I think that it is appropriate and necessary to ask her what she meant by her comments.  If she really believes that cases should come out differently depending on the race or gender of the judge or the parties (which I very much doubt), then she is not fit to serve on the Supreme Court.  No doubt she will assure us that she does not believe that.

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37.

Ex 1L
May 29, 2009 9:06 AM CST

No. 31.  There is no conclusive evidence Cardozo was Portugeuese, and in fact, the borders of Portugal and Spain have changed over the centuries.  Those from the Iberian peninsula are regarded as Hispanic by the Census Bureau so that term is not limited to those from South America.  Also, according to your theory, if Sotomayor is “Spanish,” then she doesn’t qualify as “Latina” either… which begs the question:  Why didn’t BHO appoint someone with Latin-American roots, i.e., whose ancestors came from Mexico, Guatemala, etc?  Also, if you are several ancestors removed from your Spanish roots, wouldn’t that make you less Hispanic through intermarriage with, for example, Anglos???  Several members of my extended family, for e.g.,  are white Hispanics, which is more common nowadays.

What does your husband think about that?  Please ask him now.  Thanks.

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38.

Charles Schwartz
May 29, 2009 9:24 AM CST

Correct me if I’m wrong, but isn’t Disparate Impact still a part of employment law?  If it is, and if the Second Circuit still has Disparate Impact, then wouldn’t Judge Sotomayor be blasted as a “judicial activist” who disregards precedent had she ignored it in the Connecticut firefighter case?

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39.

bobbie
May 29, 2009 12:16 PM CST

Isn’t everyone who speaks Spanish a Latino?

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40.

Sue
May 29, 2009 1:49 PM CST

Ex 1L -
Please do your research before pretending you know what you’re talking about. The border between Spain and Portugal has largely remained unchanged since 1249. Cardozo’s maternal grandmother’s last named was Seixas, which is distinctly Portuguese. The name Cardozo could be either Spanish or Portuguese, but in any case, he was at least partially Portuguese.

Not sure what census bureau definition you’re looking at, but the one I see on their web site doesn’t mention the Iberian Peninsula at all. “Persons of Hispanic origin, in particular, were those who indicated that their origin was Mexican, Puerto Rican, Cuban, Central or South American, or some other Hispanic origin.”

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41.

jcannon
May 29, 2009 4:32 PM CST

A couple of comments:

Unless affirmative action now applies to SCT appointments, Sotomayor’s ethinicity is irrelevant. The only reason it was raised was to try to create the impression that her appointment is historical—it’s not. There have already been women on the court and Cardoza was hispanic. All of a sudden liberals want to cast aside Cardoza’s heritage or require absolute proof.

The only issue of importance is her ability to serve the role as justice. Her credentials are excellent. She has solid experience.

My hesistation comes from her comments where she has provided us with insight into how she views the role of the judiciary:

(1) Circuit courts are for making policy and (2) a latina woman will make better decisions that a white man—very disturbing statements.

(1) is at direct odds with the role of the judiciary. Moreover, If each judge is to make a decision based upon his/her empathy or heritage, there will be no consistency in the law.

(2) is arguably racist and ridiculous for that matter. If the role of judge is to apply the law as written by the founders and congress, one’s background should be irrelevant and certainly does not make her better.

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42.

gea
May 29, 2009 8:26 PM CST

Sorry #31, you and your husband are both wrong about the ‘iberian” thing. In American we get to decide what is or is not hispanic.  At the moment the people who make up the designations describe hispanic as person speaking spanish. Then they break it down into white and black spanish. This is all foolishness, but it appears the best the best minds have to offer in confiming whether or not companies are hiring people with ancestors from all of the continents. What is crazy, is that almost every ethinic group has been prejudiced against in America, including the portugese, spanish, native americans from south and north america, italians, jewish, polish, welsh, irish, italians, etc… They were all denied a seat at the board room table. And there was no affirmative action program to let them in the door. Although, obviously, we have had civil rights laws mandated in both the 19th and 20th century. But when women and african americans tried to sit at the board room, the english and french and others in power, decided to keep women, africans, asian and native americans OUT and let the previoulsy prejudiced against european americans slowly in. First into academia and then into the corporate arenas. Then with the rise of Japan and China, the guys in the board room started very slowly to let them in, at a trickle rate.  I don’t think that the government can force people to be fair! Only customers refusing to buy products from companies who don’t have people on the board that look like them will force people in the board room to willingly let go of their priviledge, since they will have no choice.

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43.

Adamius
May 30, 2009 8:37 AM CST

This article is tripe.  Most of the responses are too.  To those who denigrate her for suggesting the panel would benefit from a hispanic female’s point of view and cry reverse racism, I say stop being such pinheads.  White males aren’t hurting for opportunity or representation.  W made sure a couple more of them got on the bench.  Even if men continued to steer the war machine in this country, how much better off would we be if it was a woman who decided IF we went to war at all first?  Our national debt would be less than half of what it is, which would have freed us to respond in a more controlled and less rushed manner to the economic crisis.  It’s not the fact that she is hispanic that is the greatest difference, it’s the fact that she’s a woman, and I as a man will be the first to admit that sometimes men are just ridiculously stupid, and need to be balanced out by women on something as important as the supreme court.  To those who say she is dismissive of others’ ideas, please put your money where your mouth is and try to get Scalia removed from the bench somehow.  What’s the 5th line of attack, she wears a black robe on the bench because she thinks she’s better than us?

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44.

B. McLeod
May 30, 2009 12:10 PM CST

Without addressing the other premises of the prior post, I do think it is important to note that individual Supreme Court Justices are not charged with making the decision to go to war.

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45.

Michael M.
May 30, 2009 2:21 PM CST

I’m not a lawyer yet, but I’ve been around awhile, and I came here to find well-reasoned debate from deep-thinking people. Man, am I disappointed. We have, over this serious topic of the qualifications of a Supreme Court Justice: A raging debate over whether Cardozo was Portuguese or Spanish and whether both qualify as “Hispanic;” an argument that surviving the Bronx makes for good quality SCOTUS material; an implication that writing “Vermont” instead of “Connecticut” disqualifies the rest of someone’s argument; corrections regarding the proper playwrights’ for a musical; an argument that wanting diversity on the court absolves a nominee of being racist and sexist; the apparent claim that only lawmakers, never judges, make poor work product; another claim that Hispanic women “maybe (sic) more qualified to make decisions that affect race” (that one really floored me); ad hominem attacks (wingnut?); equating “liberalism” in the 18th Century to “liberalism” in the 21st Century; the wonderfully self-effacing “admission” that sometimes men can be ridiculously stupid, so they need to be balanced by women, who—what?—are never ridiculously stupid, or should the stupid men be balanced by stupid women? (I admit this argument eludes me); and on and on…

Here’s the thing: If you like the idea of a “ruling class” that uses their power to legislate and judge society into a mold of your benevolent choosing, then you’re going to love Obama’s choices for SCOTUS. Period. If you think there is no greater power to fear than courts, chief executives, and legislatures wielding unbounded control over society’s development, then you’re going to hate Obama’s choices for SCOTUS. Period.

Debating all the other “issues” is subterfuge, and frankly I thought it was beneath the purview of educated counselors. My bad.

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46.

B. McLeod
May 30, 2009 9:27 PM CST

Michael, I’m sure we’re all very boring, sensible and well-reasoned at our jobs.  By contrast, the posts on this site on any given day will range from pointless banter to passionate partisanship.  Please don’t come here again seeking well-reasoned debate from deep-thinking people.  If somebody told you to do that, they were just dicking with you.

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47.

harris leinwand
May 31, 2009 7:28 PM CST

Sotomayor would not be the first Hispanic Supreme Court Justice. I am surprised people have forgotten Cardozo.

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48.

R
Jun 1, 2009 11:26 AM CST

A great and inspiring choice. Can’t wait for her to be confirmed.

Interesting that none of the lines of attack offered in this article mention “racism.” Yet that’s what’s been getting all the oxygen in the blogosphere. To the great detriment of the GOP.

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49.

J.D.
Jun 1, 2009 12:30 PM CST

^ Someone read the DailyKos talking points memo.

Too bad it was written by someone with no knowledge of politics whatsoever.

And “inspiring”? Really? Please explain how you feel “inspired” by ANY nomination of a justice…. That’s a line that has been cut-and-pasted all over the internet, with no explanation.

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50.

MAK
Jun 3, 2009 9:27 AM CST

It’s just a shame that the people who are sooo proufd that a minority is nominated do not even realize that Asian Americans are seriously under-represented in the American legal system.  No Asian female judge has the qualifications of Sotomayer because NO Asian has been given the opportunity.  P.S. When will it be recognized that you do not have to go to Yale or Harvard law school to qualify for the Sumpreme Court?  True diversity would be to nominate someone from a law school other than.

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