Right Wing Radicals Are Howling, Snarling And Snapping Like Crazed Rabid Mad Dogs.

Right Wing Radicals Are Howling, Snarling And Snapping Like Crazed Rabid 

Mad Dogs. 

The noise of the death rattle is deafening and stench of the rotting corpse of the far right is filling my nostrils. The absolute lunacy being published and aired by America’s Media gives clear evidence of their incompetence, mindless verbal lint and sensationalist crazed drooling devoid of a iota of responsibility and integrity.  This is not news; this is desperate and depraved tabloid editorialism.  It is time for America to reject this rubbish and boycott the press, the networks and every sponsor of programming that shovels this shit!

Heavens to Sonia, indeed. It's hilarious to watch these people. Except when it isn't. For generations the GOP has been the dominant political party. And according to the GOP, racism and bigotry doesn't exist…except when a white dude is getting screwed. In the days to come there's going to be an endless supply of ugly statements from Republicans for us to wade through. Watch where you step , keep your shoes clean, and remember don’t let your blood pressure get out of line; we have the votes after a few more Republicans make total asses off themselves in the continued day time Republican Drama: “The Journey Into Oblivion”.

“Civilization can only revive when there shall come into being in a number of individuals a new tone of mind, independent of the prevalent one among the crowds, and in opposition to it -- a tone of mind which will gradually win influence over the collective one, and in the end determine its character. Only an ethical movement can rescue us from barbarism, and the ethical comes into existence only in individuals.”

-Albert Schwitzer-

The Kitten Strikes Again!

 Sessions: Sotomayor filibuster not "in the works" - Glenn Thrush ...

If the Republicans on the Judiciary committee are stupid enough to challenge the qualifications of Sotomayor, the same repugs who thought Sarah Palin was brilliant and qualified, than it's no wonder Obama continues to shut them down ...
Top 10 POLITICO Story - http://www.politico.com/

 

Pat Robertson: Sotomayor Nomination an 'Outrage'

By: Rick Pedraza- -

 

Televangelist Pat Robertson says President Barack Obama's Supreme Court nomination of Judge Sonia Sotomayor is an “outrage.”

Robertson cited her views on judicial activism as he criticized her nomination during an interview with Fox News’ Sean Hannity Tuesday.

“I think Obama has reached out to one of the most left-wing judges that there is in the United States,” Robertson said. “I think it's an outrage.”

Robertson, founder and chairman of the Christian Broadcasting Network, Christian Coalition, and host of the Christian Broadcasting Network’s “700 Club,” said Republicans should focus on Sotomayor’s judicial decisions, which he believes make her extremely vulnerable.

Robertson made his comments shortly after the California Supreme Court upheld Proposition 8, the voter-approved initiative to make same-sex marriage illegal that passed in November.

“I expected it,” Robertson said of the court ruling that California citizens must amend their Constitution if they want to see gay marriage realized. “I really did. I think that California court is not as nutty as the Ninth Circuit.”

Robertson, who campaigned to become the Republican Party's nominee in the 1988 presidential election, said the California Supreme Court had no other choice but to uphold Proposition 8.

“The people had clearly voted to amend the Constitution, and what can they say? I think kind of like Solomon: They'd split the baby, you know. They let existing marriage stand. But the rest they banned. I think it was a good ruling.”

Robertson told Hannity that on a scale of one to ten, he’d give Obama a two for his early handling of foreign policy and nuclear proliferation issues.

“I think that they [the Obama administration] just aren't willing to confront what's out there,” he said. “You talk about evil. (Iranian President Mahmoud) Ahmadinejad, we've studied him, studied what he says. He is a fervent — and I mean this deliberately — he is a fervent believer in the 12th Imam that he calls the Mahdi.

“And he believers the Mahdi is living in a well just south of Qum in Iran, and he believes that the Mahdi is going to return to earth during his administration. And the Mahdi will only come after there is universal chaos and great destruction and then he will rebuild, according to their belief,” Robertson said.

“Now, you say this is nutty, but he is nutty. He's crazy but he spoke about this at the United Nations. He speaks about it often, and he would not hesitate to incinerate Israel if he thought it would hasten the coming of the Mahdi.”

Robertson noted that no amount of international pressure or trade embargoes will dissuade Iran from taking nuclear weapons it’s building and using them “to blow up some people. He might turn it on Europe. He might turn it on Saudi Arabia. Who knows what he would do? But he is a madman.”

Israel has no other option but to take out Iran’s nuclear sites, Robertson said .

“None whatsoever,” he said. Ahmadinejad "has made it clear that he wants to destroy [Israel]. It's like Hitler in ‘Mein Kampf.’ He laid out the complete plan what he was going to do. But there was no ambiguity whatsoever. And yet the allies just said, ‘Oh, well; he's an Austrian paper hanger, and we don't take him seriously.’

“Well, look what he did. Fifty million people died in World War II because of him. And I think the Israelis have no choice because their very existence is at stake. And if he [Ahmadinejad] gets the bomb, and he has a delivery mechanism with a long-range rocket, not only could he imperil [Israel], he could imperil Europe. And he's dangerous — extremely dangerous!”

In his latest book on the economy, "Right on the Money," Robertson advises people to look after themselves and have a financial future.

“It's important,” he said. “Social Security is going bankrupt, as is Medicare. America is losing its preeminent position as an economic power because of this. How would anybody trust us anymore if we pull a stunt like [this] and essentially bankrupt [ourselves].”

Robertson said the key to wealth is gradual accumulation.

“It’s something Jesus talked about: the law of use coupled with the exponential curve," Robertson said.-

 

Gingrich: Sotomayor 'Racist,' Should Withdraw

Reacting to comments by President Barack Obama's court nominee that a 'wise Latina' is a better judge than a white man, former House Speaker Newt Gingrich called Judge Sonia Sotomayor a 'racist' and said she should withdraw her nomination.

Gingrich's comments, which he Twittered on Wednesday, came a day after Rush Limbaugh made a similar point, calling Sotomayor a "reverse racist."

Gingrich wrote on Twitter: "Imagine a judicial nominee said 'my experience as a white man makes me better than a Latina woman' new racism is no better than old racism."

"White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw," Gingrich wrote, according to ABC News.

Sotomayor attempted to explain her stance during that 2001 Berkeley lecture.

Conservative pundit Coulter echoed Gingrich's sentiment on "Good Morning America" today, although she called only Sotomayor's words racist and did not specifically call for her to withdraw.

"It does a disservice to minorities -- to women and minorities -- that we are supposed to be empathizing for," Coulter said on "Good Morning America" today. "Saying that someone would decide a case differently... because she's a Latina, not a white male, that statement by definition is racist."-

 

Myths And Falsehoods Surrounding The Sotomayor Nomination

SUMMARY: The media have advanced numerous myths and falsehoods about Sonia Sotomayor. In addition to evaluating these claims on their merits, the media should also consistently report that conservatives were reportedly very clear about their intentions to oppose President Obama's nominee for political purposes, no matter who it was.

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In covering the announcement by President Obama that he intends to nominate Judge Sonia Sotomayor to replace retiring Justice David Souter on the Supreme Court, the media have advanced numerous myths and falsehoods about Sotomayor. In some cases, the media assert the falsehoods themselves; in others, they report unchallenged the claims of others.

In addition to evaluating these claims on their merits, the media should also consistently report that conservatives were reportedly very clear about their intentions to oppose Obama's nominee, no matter who it was. Their attacks must be assessed in the context of their reported plans to use the confirmation process to "help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats"; "build the conservative movement"; provide "a massive teaching moment for America"; "prepare the great debate with a view toward Senate elections in 2010 and the presidency"; and "hurt conservative Democrats."

Media Matters for America has compiled a list of myths and falsehoods that have emerged or resurfaced since Sotomayor's nomination was first reported.

MYTH: Sotomayor advocated legislating from the bench

Media including TheWall Street Journal, USA Today, CNN, Fox News, and MSNBC have misrepresented Sotomayor's statement -- during a February 25, 2005, Duke University School of Lawforum -- that the "court of appeals is where policy is made." These media outlets have advanced assertions that Sotomayor was advocating that judges make policy from the bench, or in the case of NBC's Matt Lauer and Chuck Todd, falsely characterized Sotomayor's comment themselves. But the context of her comments makes clear that she was simply explaining the difference between district courts and appeals courts after being asked about the differences between clerkships at the two levels, an explanation in line with federal appellate courts' "policy making" role described by the Oxford Companion to the Supreme Court of the United States (2005).

From Sotomayor's remarks:

SOTOMAYOR: The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case.

So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time.

According to NBC News justice correspondent Pete Williams, "[E]ven some conservatives and followers of strict constructionism have said that [Sotomayor] was only stating the obvious: that trial judges, district court judges, decide only the cases before them, and that appeals courts, because they are the, you know, above the other courts, do set policy; they do make precedent that governs the other courts." Indeed, legal experts have stated that Sotomayor's comment is not controversial, as The Huffington Post and PolitiFact.com have noted. In the words of Hofstra University law professor Eric Freedman, Sotomayor's remark was "the absolute judicial equivalent of saying the sun rises each morning" and "thoroughly uncontroversial to anyone other than a determined demagogue."

MYTH: Sotomayor said, "Latina judges are obviously better than white male judges"

Media figures have misrepresented a remark that Sotomayor made in a speech published in 2002, claiming that she suggested, in the words of Fox News' Megyn Kelly, "that Latina judges are obviously better than white male judges." Further advancing the falsehood, numerous media figures have asserted that Sotomayor made a "racist statement." In fact, when Sotomayor asserted, "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," she was specifically discussing the importance of judicial diversity in determining race and sex discrimination cases. Indeed, as Media Matters hasnoted, former Bush Justice Department lawyer John Yoo has similarly stressed that Supreme Court Justice Clarence Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

MYTH: Sotomayor's Supreme Court reversal rate is "high"

In a May 27 article headlined "Sotomayor reversed 60% by high court," The Washington Times uncritically quoted Conservative Women for America president Wendy Wright saying that Sotomayor's reversals -- which the Times reported as three of five cases, or 60 percent -- were "high." Similarly, on May 26, Congressional Quarterly Today uncritically quoted (subscription required) Wendy Long, counsel to the Judicial Confirmation Network, claiming that Sotomayor "has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court." In fact, contrary to the claim that a reversal rate of 60 percent is "high," data compiled by SCOTUSblog since 2004 show that the Supreme Court has reversed more than 60 percent of the federal appeals court cases it considered each year.

MYTH: Liberal judges like Sotomayor are "activist[s]"

CNN's Gloria Borger and Bill Schneider have uncritically repeated Republican claims that Sotomayor is -- in Schneider's words -- a "liberal activist," and in doing so have also advanced the baselessconservative claim that judicial activism is solely a "liberal" practice. But at least two studies -- looking at two different sets of criteria -- have found that the most "conservative" Supreme Court justices have been among the biggest judicial activists.

A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder indicated that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the most frequent practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress. Indeed, Gewirtz and Golder found that Thomas "was the most inclined" to do so, "voting to invalidate 65.63 percent of those laws." Additionally, a recently published study by Cass R. Sunstein (recently named by Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism -- the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court's "conservative" justices were the most likely to engage in "judicial activism," while the "liberal" justices were most likely to exercise "judicial restraint."

Moreover, according to Politico's Jeanne Cummings, "Sotomayor's history suggests the very sort of judicial restraint that conservatives clamor for in a nominee." She added:

Whatever her personal ideology, she ruled against an abortion-rights group challenging [President] Bush's policy of banning overseas groups that take federal funds from conducting abortions. In another case, she ruled in favor of abortion protesters.

"She applied the law even-handedly and come out with the right decision," said Bruce Hausknecht, a judicial analyst for Focus on the Family Action, a large and influential voice on conservative social issues.

Sotomayor's rulings on religious liberty issues also have pleased the conservative community.

"It would have been a lot easier to communicate to the base why Judge Wood would not have made a good nominee," said Hausknecht. "With Sotomayor, we have to take a wait-and-see attitude."

MYTH: Sotomayor was "[s]oft on New Jersey [c]orruption"

In a May 26 post to his National Review Online "the campaign spot" blog, Jim Geraghty misleadingly suggested that as a U.S. district judge, Sotomayor was "[s]oft on New Jersey [c]orruption" due to the sentencing and financial penalty she issued in 1995 to Joseph C. Salema in a municipal bond kickback scheme. Geraghty cited the book The Soprano State: New Jersey's Culture of Corruption, by Bob Ingle and Sandy McClure, who wrote that "Salema could have spent up to 10 years behind bars" and that Sotomayor "instead sentenced him to six months in a halfway house and six months of home detention, fined him $10,000 and gave him 1400 hours of community service." Geraghty commented: "A $10,000 fine to someone who pleads guilty to a federal charge of sharing in more than $200,000 in kickbacks. Boy, that will teach him!" But in declaring Sotomayor "[s]oft," Geraghty ignored the fact that prosecutors reportedly sought a prison term of only one year and that Salema reportedly paid "a full restitution of $342,000" in a settlement with the Securities and Exchange Commission (SEC).

MYTH: New Haven firefighters case shows Sotomayor is an "activist"

The media have advanced conservatives' claim that Sotomayor's position in the New Haven firefighters case, Ricci v. DeStefano, shows that she is an "activist" judge. For example, a May 26 Congressional Quarterly Today article quoted Long as saying that Sotomayor "has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court" and reported that Long "pointed to Sotomayor's participation in a 2nd Circuit discrimination case, Ricci v. DeStefano, in which a group of white New Haven, Conn., firefighters alleged they were unfairly denied promotions." In fact, Sotomayor agreed with four of her 2nd U.S. Circuit Court of Appeals colleagues that precedent compelled the decision in the case. Moreover, contrary to Long's suggestion that Sotomayor's decision shows that she is "far more of a liberal activist than even the current liberal activist Supreme Court," Souter -- whom Sotomayor would replace -- reflected an understanding of the situation faced by the city of New Haven, asking counsel for the firefighters: "Why isn't the most reasonable reading of this set of facts a reading which is consistent with giving the city an opportunity, assuming good faith, to start again? ... [I]sn't that the only way to avoid the damned if you do, damned if you don't situation?"

MYTH: Sotomayor lacks the intellect to be an effective justice

Several media figures have repeated the charge that Sotomayor lacks the intellect to be an effective Supreme Court justice, often quoting only anonymous sources or no sources at all. For instance, CNN's John King said while reporting on Obama's nomination announcement, "[S]ome ... are voicing surprise at this because they view her as a highly competent and a highly qualified judge, but they do not believe that she was the most, shall we say, of the intellectual firebrands that the president had on his list, those who could go up against a [Antonin] Scalia, or an [Samuel] Alito on the court in the arguments."The Washington Post's Dana Milbank similarly stated: "As a legal mind, Sotomayor is described in portraits as competent, but no Louis Brandeis." However, Media Matters has identified law scholars and legal professionals who worked with Sotomayor who have described her as "highly intelligent" and even "brilliant."

As Tom Goldstein noted on SCOTUSblog, "Opponents' first claim -- likely stated obliquely and only on background -- will be that Judge Sotomayor is not smart enough for the job" because "[t]he public expects Supreme Court Justices to be brilliant." Goldstein added: "The objective evidence is that Sotomayor is in fact extremely intelligent. Graduating at the top of the class at Princeton is a signal accomplishment. Her opinions are thorough, well-reasoned, and clearly written. Nothing suggests she isn't the match of the other Justices." Goldstein is a partner at Akin Gump Straus Hauer & Feldmann LLP and "co-head" of the firm's "litigation and Supreme Court practices" who "teaches Supreme Court Litigation at both Stanford and Harvard Law Schools."

MYTH: Sotomayor is "domineering" and "a bit of a bully"

Echoing a May 4 New Republic article by legal affairs editor Jeffrey Rosen, Fox News host Bill Hemmer and Supreme Court reporter Shannon Bream relied on anonymous sources that reportedlycharacterized Sotomayor as "domineering," sometimes "bogged down in marginal details," and "a bit of a bully." A CNN.com article similarly referenced "perceived ... concerns about her temperament." However, several of Rosen's sources were unnamed "former law clerks for other judges on the Second Circuit." Beyond allowing sources who are not identified to throw darts at Sotomayor, such citations of law clerks is problematic for a different reason, according to American University law professor Darren Hutchinson, who wrote, "[T]he use of clerks to determine whether a judge should receive a Supreme Court nomination is extremely problematic," because "[m]ost clerks have just graduated from law school, have never tried a case or practiced law, and do not have sufficient experience or knowledge of the law to make an informed assessment of a judge."

MYTH: "Empathy" is code for "liberal activist"

Media figures and outlets have focused on the purported controversy over Obama's May 1 statementthat he would seek a replacement for Souter who demonstrates the quality of "empathy" and conservatives' criticism that Sotomayor, in the words of Long, "applies her feelings ... when deciding cases." Several media figures and outlets, including Fox News' Special Report and The Washington Post, have falsely suggested that Obama said that he will seek a Supreme Court nominee who demonstrates empathy rather than a commitment to follow the law. In fact, in the statement in question, Obama said that his nominee will demonstrate both. Other media have stated or advanced the claimthat, in the words of a May 4 National Review editorial, "[e]mpathy is simply a codeword for an inclination toward liberal activism." But these media figures and outlets have ignored conservatives' history of stressing the importance of judges' possessing empathy or compassion.

Indeed, during his Supreme Court confirmation hearings, responding to Sen. Herb Kohl's (D-WI) question, "I'd like to ask you why you want this job?" Thomas stated in part: "I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does." Moreover, then-President George H.W. Bush citedThomas' "great empathy" in his remarks announcing that he was nominating Thomas to serve on the Supreme Court. Sen. Kit Bond (R-MO) similarly stated: "Though his skills as a lawyer and a judge are obvious, they are not, in my view, the only reason that this committee should vote to approve Judge Thomas's nomination. Just as important is his compassion and understanding of the impact that the Supreme Court has on the lives of average Americans." In his review of Thomas' 2007 memoir, My Grandfather's Son (HarperCollins), former Bush administration lawyer John Yoo touted the unique perspective that he said Thomas brings to the bench. Yoo wrote that Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

Additionally, several Republican then-senators, including Strom Thurmond (SC), Al D'Amato (NY), and Mike DeWine (OH), cited compassion as a qualification for judicial confirmation. For instance, during the confirmation hearings for Justice Ruth Bader Ginsburg, Thurmond stated that "compassion" was one of the "special qualifications I believe an individual should possess to serve on the Supreme Court," adding that "[w]hile a nominee must be firm in his or her decisions, they should show mercy when appropriate." Similarly, during the confirmation hearings for Justice Stephen Breyer, Thurmond said "compassion" was among "the special criteria which I believe an individual must possess to serve on the Supreme Court."

Will baselessly claims Sotomayor "embraces ... idea of categorical representation"

In his Washington Post column, George Will baselessly claimed Sonia Sotomayor "embraces identity politics," including the notion that "members of a particular category can be represented -- understood, empathized with -- only by persons of the same identity." Read More

Conservatives react to historic Supreme Court nominee by smearing Sotomayor as "racist," "bigot"
Numerous conservative media figures have misrepresented remarks Judge Sonia Sotomayor made during a speech at Berkeley in 2001 to smear her as a racist and a bigot. Read More

WSJ, USA Today advance conservatives' distortions of Sotomayor's Duke remark
The Wall Street Journal and USA Today advanced conservative efforts to portray Sonia Sotomayor as an activist judge by misrepresenting a remark she made about the difference between district and appeals court justices. Read More

Lauer falsely claims Sotomayor said appellate courts make policy rather than interpreting laws
Matt Lauer misrepresented comments made by Sonia Sotomayor about the role of appellate courts and suggested that Sotomayor was "an activist judge." Read More

Milbank joins smear campaign challenging Sotomayor's intellect
Echoing an early smear of Judge Sonia Sotomayor, The Washington Post's Dana Milbank wrote that "portraits" of Sotomayor describe her as merely "competent, but no Louis Brandeis" -- but numerous "portraits" Media Matters has identified describe Sotomayor as "highly intelligent" and even "brilliant." Read More

Fox airs on-screen graphics featuring Sotomayor's college yearbook quote of Socialist Thomas
Fox News featured on-screen graphics noting that Judge Sonia Sotomayor quoted Norman Thomas, a six-time presidential candidate for the Socialist Party of America, in her Princeton yearbook. Neither Sotomayor's yearbook page nor Thomas was discussed during the segment.Read More

Lowry distorts Sotomayor statement on whether "judges should transcend their 'personal sympathies and prejudices' "
Rich Lowry falsely claimed that Judge Sonia Sotomayor "disagreed with a colleague who thought judges should transcend their 'personal sympathies and prejudices.' " In fact, in the speech Lowry referenced, Sotomayor made clear that she "agree[d]" with the sentiment that judges should seek to "transcend their personal sympathies and sentiments" whenever possible. Read More

Fox's Bream falsely suggests Sotomayor ruling in firefighters case outside the mainstream
Shannon Bream echoed a conservative talking point by falsely suggesting that Sonia Sotomayor's position in Ricci v. DeStefano indicates that she is outside the mainstream of the current court. Read More

Media cite "policy" comment in falsely accusing Sotomayor of "judicial activism"
Several media outlets and figures have advanced the falsehood that Sonia Sotomayor's statement that the "court of appeals is where policy is made" means that she believes in "judicial activism." In fact, numerous legal experts have stated that her comment was accurate and uncontroversial. Read More

Wash. Times, CQ uncritically report criticism that Sotomayor's Supreme Court reversal rate is "high"
The Washington Times and CQ Today advanced without challenge the charge that Judge Sonia Sotomayor's reversals, which the Times reported as three of five cases, or 60 percent, are "high." But the Supreme Court has reversed more than 60 percent of the federal appeals court cases it considered each year since 2004. Read More

Some media reject claims that Sotomayor is a liberal activist
Conservative media figures have been quick to describe Sonia Sotomayor as, in Sean Hannity's words, "left-wing" and an "activist." Several media figures and legal experts reject this characterization, describing her as a "political centrist." Read More

Media, others dredge up discredited smear piece in reporting on Sotomayor nomination
Numerous media figures have cited anonymous smears of Sonia Sotomayor's intellect and temperament reported by The New Republic's Jeffrey Rosen, though Rosen has admitted he had neither read enough of her opinions nor spoken to enough of her supporters to form a fair assessment of her. Read More

Myths and falsehoods surrounding the Sotomayor nomination
The media have advanced numerous myths and falsehoods about Sonia Sotomayor. In addition to evaluating these claims on their merits, the media should also consistently report that conservatives were reportedly very clear about their intentions to oppose President Obama's nominee for political purposes, no matter who it was. Read More

Media Cite “Policy” Comment In Falsely Accusing Sotomayor Of Judicial Activism”

http://mediamatters.org/items/200905270037

In their reporting of Supreme Court nominee Sonia Sotomayor's 2005 statement that the "court of appeals is where policy is made," several media figures and outlets have advanced the falsehood that her statement represented, in the words of Fox News' Sean Hannity, "the definition of judicial activism." In fact, numerous legal experts have stated that Sotomayor's comment was, in the words of Hofstra University law professor Eric Freedman, "the absolute judicial equivalent of saying the sun rises each morning" and "thoroughly uncontroversial to anyone other than a determined demagogue."

From Sotomayor's remarks, made in response to a student who asked the panel to contrast the experiences of a district court clerkship and a circuit court clerkship at a February 25, 2005, Duke University School of Law forum (beginning at approximately 40:00):

SOTOMAYOR: The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time.

In a May 26 article, PolitiFact.com concluded that it was "misleading" for the Republican National Committee to use Sotomayor's statement "to suggest it means she would be an activist judge on the Supreme Court." PolitiFact.com further reported:

So keep in mind the audience and the question here, said Tom Goldstein, a partner at Washington law firm Akin Gump and the founder of ScotusBlog, a widely read blog on the Supreme Court. Goldstein watched the full video, and simply sees it as Sotomayor noting that in comparison to district court judges, "there's more policy involved" in the appeals courts.

"The truth of the matter is, in the court of appeals, they are dealing with gaps and ambiguities in the law," Goldstein said.

There's a lot for judges to interpret. Appeals court judges often have to make a call when a statute is unclear. In a sense, the policy is set by those calls made by the judges, even if they don't want to.

To use that one line from Sotomayor to paint her as an activist judge is misleading, he said.

"She's not a sweeping visionary ideologue in any way," Goldstein said. "Conservatives who are genuinely concerned about the direction of the Supreme Court, they are sort of grasping at straws here. That's an awful lot to put on one sentence."

David Garrow, a historian who follows the Supreme Court, agrees.

There has always been two schools of thought on the role of judges, Garrow said: those who see the law almost as an academic exercise, trying their best to mechanically apply the law; and the legal realists, who believe interpreting the law involves making choices, discretion.

"What she (Sotomayor) said there is simply the honest version of what any judge knows and realizes," Garrow said. But "you're not really supposed to acknowledge it on the record."

It's unfair to extrapolate that comment to suggest Sotomayor would mandate policy, he said.

"To anyone who knows the intellectual history of judicial decision-making, she's just being honest, not activist," Garrow said.

Similarly, in a May 26 article, The Huffington Post reported that "for legal experts, there is nothing actually controversial to what Sotomayor said":

The remarks, four years later, have hit the central nerve of the conservative psyche. Figures within and outside the GOP have already announced -- even before Sotomayor was tapped to be Barack Obama's nominee for the Supreme Court -- that they would be painting her as an activist from the bench.

But for legal experts, there is nothing actually controversial to what Sotomayor said. Her political crime, if there were one in this case, was speaking the truth.

"She's not wrong," said Jeffrey Segal, a professor of law at Stony Brook University. "Of course they make policy ... You can, on one hand, say Congress makes the law and the court interprets it. But on the other hand the law is not always clear. And in clarifying those laws, the courts make policy."

As Segal noted, one of the most recent cases heard by the Supreme Court -- itself a court of appeals -- involves the strip search of a 13-year-old who school officials believed was carrying ibuprofen. "There is no clear knowing statement whether officials can be sued for that sort of behavior," he noted. "So when justices come up with a decision on that, they would be making policy."

Eric Freedman, a law professor at Hofstra University, was equally dismissive of this emerging conservative talking point. "She was saying something which is the absolute judicial equivalent of saying the sun rises each morning. It is not a controversial proposition at all that the overwhelming quantity of law making work in the federal system is done by the court of appeals ... It is thoroughly uncontroversial to anyone other than a determined demagogue."

Freedman, who was a classmate of Sotomayor's at Yale Law School, noted that while the Supreme Court will decide roughly 90 cases a year, the court of appeals will weigh in on "many thousands." They are, indeed, "the final stop for the most important decisions in the federal system." They also are the forums where vagaries and gray areas of the law go to be clarified.

"One element of judging, obviously, is issuing precedent," Freedman explained. "But if the thing were squarely disposed of by existing precedent they probably wouldn't go to the court of appeals for it. Their lawyers would say, forget it ... So this is where you get clarification for cases without precedent."

"I would be surprised if you got a different opinion from a fair-minded observer in the legal world," he added.

Moreover, as Media Matters for America has noted, the Oxford Companion to the Supreme Court of the United States (2005) notes that federal appellate courts do in fact have a "policy-making" role:

The courts of appeals have also gained prominence because of the substance of their caseload. For their first twenty-five years, these courts dealt primarily with private law appeals. Diversity cases (suits between citizens of different states), bankruptcy, patent, and admiralty cases made up most of their work. However, as federal regulation increased, first during the Progressive Era, then during the New Deal, and finally during the 1960s and 1970s, the role of the courts of appeals changed as appeals from federal administrative agencies became a larger part of their caseload. Other developments that increased these courts' policy-making importance were the increased scope of federal prosecutions, especially those dealing with civil rights, drugs, racketeering, and political corruption, increased private litigation over various types of discrimination; and litigation concerning aliens' attempts to gain political asylum. Also adding to their importance were their post-1954 use to oversee school desegregation and reform of state institutions such as prisons and mental hospitals, along with controversies like that over abortion.

Additionally, as Media Matters noted, according to NBC News justice correspondent Pete Williams, "[E]ven some conservatives and followers of strict constructionism have said that [Sotomayor] was only stating the obvious: that trial judges, district court judges, decide only the cases before them, and that appeals courts, because they are the, you know, above the other courts, do set policy; they do make precedent that governs the other courts."

Indeed, Case Western Reserve University law professor Jonathan Adler wrote in a May 3 post on the legal blog The Volokh Conspiracy that "[s]ome seem to think that this is a damning statement and evidence of closet 'judicial activism.' I don't." Adler's post, in full:

Courts Are "Where Policy Is Made":

A video of Sonia Sotomayor, a judge on the U.S. Court of Appeals for the Second Circuit widely viewed as a short-listed for the Supreme Court, is making the blogospheric rounds. In the clip, she says that the courts of appeals are "where policy is made." Some seem to think that this is a damning statement and evidence of closet "judicial activism." I don't. As presented in the clip, it seems to be nothing more than an observation that, as a practical matter, many policy disputes are resolved in the federal courts of appeals. This is an indisputably true observation. Moreover, the fact that many policy disputes are resolved in federal appellate courts does not mean that judges are resolving those cases on policy grounds. Litigation over the interpretation or implementation of a federal statute will have significant policy implications -- and deciding the case will, in many instances, "make policy." But this is wholly consistent with the idea that a judge's responsibility is to interpret and apply the law without regard for those policy consequences. Further, given the context of Judge Sotomayor's remarks, it is totally understandable why some prospective employers would want to hire individuals who are exposed to these sorts of cases. So, in sum, I don't think the statement on this video clip is a big deal. Move along.

From the May 26 edition of Fox News' Hannity:

HANNITY: Now, as we first reported on this program just a few weeks ago, Judge Sotomayor said this about where policy comes from.

SOTOMAYOR [video clip]: All of the legal defense funds out there, they're looking for people with court of appeals experience because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape, and I should never say that because we don't make law, I know. OK. I know. I'm not promoting it, I'm not advocating it, I'm -- you know. OK.

HANNITY: Now, that is the definition of judicial activism. Or take her comments in Berkeley in 2001 when she said, quote, "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."

 

Media, Others Dredge Up Discredited Smear Piece In Reporting On Sotomayor Nomination

SUMMARY: Numerous media figures have cited anonymous smears of Sonia Sotomayor's intellect and temperament reported by The New Republic'sJeffrey Rosen, though Rosen has admitted he had neither read enough of her opinions nor spoken to enough of her supporters to form a fair assessment of her.

In their reporting of President Obama's nomination of 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor to the Supreme Court, numerous media figures have cited smears of Sotomayor's intellect and temperament reported by legal affairs editor Jeffrey Rosen in a controversial May 4 New Republicarticle. Rosen's article relied heavily on anonymous attacks on Sotomayor, as well as outrightdistortions. As Media Matters for America has documented, several of Rosen's sources were unnamed "former law clerks for other judges on the Second Circuit"; according to an American University law professor, Rosen's citation of law clerks is "extremely problematic." Further, as Media Matters senior fellow Jamison Foser noted, Rosen "admitted he had neither read enough of her opinions nor spoken to enough of her supporters to form a fair assessment of her, and cropped and twisted a quote from a colleague who praised Sotomayor's intellect in order to make it appear that he had criticized it."

During the May 26 edition of MSNBC's Hardball, after MSNBC political analyst Pat Buchanan cited Rosen's piece, Salon.com editor-in-chief Joan Walsh responded: "The worst thing about that article was not the anonymous sourcing, it was that Jeffrey actually admitted himself, 'I had not read enough of her decisions to have a strong opinion one way or another on her qualifications.' Then what the hell are you doing writing in The New Republic or anywhere, for that matter? It was a terrible article. He's going to need to dial it back. He will be ashamed of it for the rest of his life."

In a May 26 post to The New Republic's blog The Plank, Rosen stated that Sotomayor "should be confirmed," adding: "Conservatives are already citing my initial piece on Sotomayor as a basis for opposing her. This willfully misreads both my piece and the follow-up response. My concern was that she might not make the most effective liberal voice on the Court -- not that she didn't have the potential to be a fine justice."

Despite Rosen's demonstrated reliance on anonymous sources and misrepresentation of source material -- as well as his own admission in the article that he hadn't "read enough of Sotomayor's opinions to have a confident sense of them" or "talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths" -- numerous media figures returned to the discredited smear piece following Sotomayor's nomination:

• During the May 26 broadcast of NPR's Morning Edition, host Steve Inskeep said, "I'm reading this article by Jeffrey Rosen of The New Republic who quotes a couple of -- anonymously -- a couple of courts [sic] who had served around Judge Sotomayor. One was not complimentary and said she's kind of a bully, not that bright." He later added, "And to be fair to Jeffrey Rosen's article, we'll say that another former clerk or person who clerked around her said that she had similar qualities but was very tough and self-confident." During the same broadcast, Inskeep hosted Rosen. During the interview, Rosen said that "there have been questions, some of which I reported, about Sotomayor's temperament." At no point during the interview did Inskeep note the criticism Rosen received for his article.

• On the May 26 edition of MSNBC's Hardball, Buchanan repeated numerous allegations, which he sourced to Rosen's article, among them, the charge that Sotomayor is a "bully" and "not that intelligent." In addition to Walsh's subsequent criticism of Rosen, host Chris Matthews said that Rosen should "re-examine the facts" and "get some on-the-record quotes."

• On the May 26 edition of CNBC's The Call, host Larry Kudlow referenced Rosen's article during his panel, saying of Sotomayor, "She is known as a judicial activist, making policy from the bench. We have this incriminating tape on her. She is a great one for empathy, quote unquote, and you know what? In the liberal New Republic, I'm sure you saw it, Jeffrey Rosen criticizes her, talking to law clerks and whatnot -- that she's not penetrating, she's not well prepared, and her opinions are sloppy. What do you think?"

• During the May 26 edition of CNN's The Situation Room, host Wolf Blitzer said to White House senior adviser David Axelrod, "There was a tough article that Jeffrey Rosen, who's a law professor at George Washington University, wrote in The New Republic not that long ago. Among other things, he quoted people who worked with her on the courts as saying this: 'They express questions about her temperament, her judicial craftsmanship and, most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.' " Axelrod responded, "I saw the article, yes. But I don't -- I think it flies in the face of the evidence and the experience."

• During the May 26 edition of Fox News' America's Newsroom, Supreme Court reporter Shannon Bream stated, "There was a piece in The New Republic a couple of weeks ago that cited a lot of unnamed sources, and it was brutal to Judge Sotomayor. I mean, it talked about the fact that there were some people who believed that she wasn't as brilliant as she had been made out to be, that she was a bit of a bully in the way that she treated people. So she has had some negative publicity thus far." Co-host Bill Hemmer went on to say that Sotomayor "is reportedly domineering in oral arguments. She can get bogged down in marginal details, failing to see the forest for the trees."

• During the May 26 broadcast of his nationally syndicated radio show, Glenn Beck said of Sotomayor, "I have heard that she is -- in the 2nd Court of Appeals, that she is almost a bully at times, that she has the image of not being that intellectually bright. I don't know if this is true or not. This is one -- a piece of analysis that I heard today. She's not that intellectually bright, and she's almost a bully; she just loves to hear herself talk." His guest, Cato Institute vice president for legal affairs Roger Pilon, replied that this view "is widely held" and went on to cite Rosen's article.

• On May 26, Fox Nation -- Fox News' purportedly bias-free website -- linked to Rosen's piece with the headline, "Liberals Make Case Against Sotomayor":

The Washington Monthly
By Steve Benen 

Now, the right wants its own MoveOn.org, a conservative Media Matters, a right-wing version of "The Daily Show," a conservative TPM enterprise, and to duplicate the success of the netroots. Just yesterday, Tucker Carlson said he wants ...

Political Animal - http://www.washingtonmonthly.com/

Here come the anti-Sotomayor ads
msnbc.com - USA
If you left wing minions truly believe that MoveOn.org wouldn't do far worse to any justice proposed by the right, you're folling yourself. ...

Who Is More Stupid? Women Or Puerto Ricans? [VIDEO UPDATE]

Visit msnbc.com for Breaking News, World News, and News about the Economy

 

Some Media Reject Claims That Sotomayor Is A Liberal Activist

http://mediamatters.org/items/200905270045

In anticipation of and following President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court, media conservatives were quick to describe her as, in the words of Fox News' Sean Hannity, a "left-wing judge" who may be "the most activist nominee in the history of the court." But several media figures and outlets, legal experts, and liberal commentators don't subscribe to this characterization, instead calling Sotomayor a "moderate," "centrist," "moderate liberal," or judicial "minimalist." For example, American Bar Association Journal editor and publisher Edward A. Adams wrote that Sotomayor is a "political centrist." Other examples include:

• During the May 26 edition of CNN's American Morning, Harvard Law School professor Alan Dershowitz stated of Sotomayor: "She'll be a kind of moderate to the left but not strong left. I don't think she'll be much of a judicial activist. She's a centrist with leanings toward the left, having been nominated by a Republican president initially, then promoted by a Democratic president."

• During the May 26 edition of CNN's American Morning, senior legal analyst Jeffrey Toobin stated that Sotomayor "will be a voice like David Souter for moderate liberalism." Co-host T.J. Holmes then asked, "And moderate liberalism. I was going to add, that's what Dershowitz just to us on the phone a moment ago. But he described her as moderate and to the left. Is that about right?" Toobin replied, "I would say that's right." Later that day, on CNN's The Situation Room, Toobin stated that "my guess is, based on her long paper trail, Sonia Sotomayor will be a moderate liberal, like Ginsburg and Breyer."

• In a May 26 appearance on CNN's No Bias, No Bull, Harvard Law School professor Charles J. Ogletree called Sotomayor "a careful, middle-of-the-road judge" and said: "I'd like to say she's a liberal. She's not. Progressive, she's not. She's affirmed more government cases than is normal. She's a tough prosecutor. She's a tough judge." Ogletree added: "[H]ere is somebody dead in the center of the court. She's not going to move it one way or the other." Later that day on CNN's Anderson Cooper 360, Ogletree told guest host John King: "The Republicans should be applauding this because this is a person who's tough on criminal justice issues, who sides with business frequently, who's not willing to buy a silly argument that makes no difference."

• In an appearance on the May 26 edition of MSNBC's The Rachel Maddow Show, Slate.com's Dahlia Lithwick responded to a question from Maddow about whether Sotomayor might shift the court to the left: "I think that if you look at her record -- and I've spent the day doing it -- she's pretty text based." Lithwick subsequently said, "I mean, she is not the liberals' answer to Scalia or John Roberts. She is very, very much a moderate, temperate, minimalist, careful liberal."

• Appearing on NPR's Morning Edition on May 26, The New Republic's legal affairs editor Jeffrey Rosen -- who had previously written a controversial TNR article featuring anonymously sourced attacks on Sotomayor's temperament and intelligence -- said of Sotomayor: "Her opinions don't suggest that she is an extreme liberal, and indeed, conservative attempts to paint her as some crazy judicial activist will fail 'cause they're pretty technical, middle-of-the-road opinions."

• A May 26 Politico article on conservative opposition to Sotomayor concluded that "Sotomayor's history suggests the very sort of judicial restraint that conservatives clamor for in a nominee." The article reported that Sotomayor "ruled against an abortion-rights group challenging Bush's policy of banning overseas groups that take federal funds from conducting abortions" and "ruled in favor of abortion protesters," and quoted Bruce Hausknecht, a judicial analyst for the conservative group Focus on the Family Action, who stated: "She applied the law even-handedly and come out with the right decision." Politico further reported: "Sotomayor's rulings on religious liberty issues also have pleased the conservative community."

• Appearing on MSNBC's Hardball on May 26, Salon.com editor-in-chief Joan Walsh said of Sotomayor: "[L]iberals are not jumping for joy on this one. She got a very tepid kind of endorsement from NARAL because she had a controversial vote on the global gag rule that kept the federal government from giving money overseas to people who might advocate abortion. She did not come down on the feminists' side on that one. She has a very mixed record. The ABA calls her a moderate and not a liberal."

From the May 26 edition of MSNBC's Hardball with Chris Matthews:

CHRIS MATTHEWS (host): As for her philosophy, is that fair game, Joan? Because I remember Chuck Schumer --

WALSH: I think her --

MATTHEWS: -- he'll be on the show in a minute -- once said, "Let's stop nitpicking, looking for little things in the background of a judge we can knock him off or knock her off with, when we really disagree with their philosophy." Isn't it fair game for Pat to disagree with her philosophy and urge her defeat on that ground?

WALSH: Absolutely. It's fair game for Pat to disagree, and it's fair game if Republicans ultimately decide that she is a judicial activist. But, you know, Chris, the interesting thing here is liberals are not jumping for joy on this one.

She got a very tepid kind of endorsement from NARAL because she had a controversial vote on the global gag rule that kept the federal government from giving money overseas to people who might advocate abortion. She did not come down on the feminists' side on that one. She has a very --

MATTHEWS: Yeah.

WALSH: -- mixed record. The ABA calls her a moderate and not a liberal. So, Pat -- you know, Pat and I disagree a lot, but I think he's an intelligent man. I think if he did more reading and didn't just resort to --

MATTHEWS: OK.

WALSH: -- the affirmative action talking points --

PAT BUCHANAN (MSNBC political analyst): Let me tell you. Justice --

WALSH: -- he might find that there's more that he agrees with --

BUCHANAN: All right, Robert Bork and --

WALSH: -- than he disagrees with.

From the May 26 edition of CNN's Campbell Brown: No Bias, No Bull:

LISA BLOOM (CNN anchor and legal analyst): Professor Ogletree, she has a long history as a court of appeals judge and a district judge, but one would look in vain for any decision on the merits on abortion rights. Abortion rights only stand in this country by a 5 to 4 vote. Do we have a sense of where she stands there?

OGLETREE: I don't think so. And I don't think that you can have a litmus test at all about her views, because she's issued more than 400 opinions when she was on the district court appointed by George H.W. Bush, participated in thousands of cases on the 10 years on the circuit court. And she's a careful, middle-of-the-road judge.

I'd like to say she's a liberal. She's not. Progressive, she's not. She's affirmed more government cases than is normal. She's a tough prosecutor. She's a tough judge. And those who will complain about a sentence in a script or sentence in a speech or an offhand remark are missing the point.

Liberals and conservatives should be pleased that here is somebody dead in the center of the court. She's not going to move it one way or the other.

From the May 26 edition of CNN's Anderson Cooper 360:

KING: Judge Ogletree, let me try a devil's advocate here. Let's say, you're a -- sometimes lawyers are hired to do things they don't want to do. If the opposition hired you and you had to go through this record and say, here's the one thing she should worry most about, what would it be?

OGLETREE: That she's a judge who's written a lot. But the reality is, if you look at that, what I'm hearing now is laughable. It's laughable. You talk about a speech at Duke, or a speech at Berkeley -- there are thousands of lines she's written.

You can't find anything there -- if they can impeach her, disown her, criticize her. But the reality is that the only thing you can find about her is that she is sincere; she's empathetic; she's independent; she's tough; she's smart. And you know what? She's going to have an impact on the court for a very long time.

The Republicans should be applauding this because this is a person who's tough on criminal justice issues, who sides with business frequently, who's not willing to buy a silly argument that makes no difference. And even in the Ricci case that Jeff has made a reference to, the Supreme Court will probably decide the case 5 to 4.

From the May 26 edition of MSNBC's The Rachel Maddow Show:

MADDOW: On balance -- on the question of whether or not she will move the court in either direction, when you look at her record, Dahlia, do you think that she will be sort of where Souter is? Do you think she'll be to the left? Do you think she'll be to the right of Souter?

LITHWICK: She's a -- I think she's pretty much Souter. I think that if you look at her record -- and I've spent the day doing it -- she's pretty text based. She looks at the statutes. She looks at the precedent. She's kind of -- she's kind of really a very moderate liberal.

Now, on the 2nd Circuit, she's on the liberal half. On the Supreme Court, she'll also be on the liberal half. But the notion that she's kind of -- some kind of Scalia in a dress just could not be further off. I mean, she is not the liberals' answer to Scalia or John Roberts. She is very, very much a moderate, temperate, minimalist, careful liberal.

MADDOW: Which, of course, leaves open the question of whether liberals will ever get their John Roberts or Antonin Scalia, but that I guess will be settled by the next nominee.

Dahlia Lithwick, senior editor at Slate.com, thank you so much for your time tonight.

LITHWICK: Thanks, Rachel.

From the May 26 edition of NPR's Morning Edition:

STEVE INSKEEP (host): Jeffrey Rosen, I want to just interrupt you, 'cause we got about a minute left, and I want to follow up on something you said -- when you said she could be a liberal counterweight to Justice Antonin Scalia, who is one of the strongest, maybe the most famous of the conservative justices on the court.

I want to understand that because this is a judge who, just a few years ago, Democrats presented as a moderate judge, someone that President Bush himself might be willing to think about nominating. Conservatives fiercely disagreed, and it sounds like you do. You find her to be a very strong, liberal judge.

ROSEN: I said the hope is that she might be a fierce, liberal counterpart to Scalia. Her opinions don't suggest that she is an extreme liberal, and indeed, conservative attempts to paint her as some crazy judicial activist will fail 'cause they're pretty technical, middle-of-the-road opinions.

She hasn't had a huge number of really controversial constitutional cases. The big case that Obama cited nominating her was the baseball case. So it's almost as if there are conflicting hopes for her. Maybe she'll be a liberal Scalia. She can't quite be a conciliator. She has enough experience to recognize the political role of the court and so forth.

I think the bottom line is that the politics of this were so compelling --

INSKEEP: OK.

ROSEN: -- the first Hispanic justice and so forth, that was the overriding consideration. And which role precisely she'll actually play on the court remains to be seen.

INSKEEP: Jeffrey Rosen, thanks very much. He's author of The Supreme Court: The Personalities and Rivalries That Defined America.

 

WSJ, USA Today Advance Conservatives' Distortions Of Sotomayor's Duke Remark

http://mediamatters.org/items/200905270014

In a May 27 article, The Wall Street Journal asserted that "[c]onservative opponents ... will have ammunition as they seek to paint [Supreme Court nominee Judge Sonia] Sotomayor as a liberal activist and strong backer of affirmative action who would use the Supreme Court to make law, not interpret it. A video from Duke University in 2005 shows Ms. Sotomayor proclaiming the 'court of appeals is where policy is made.' " USA Today similarly stated in a May 27 article that Sotomayor's remarks during the February 25, 2005, Duke University School of Law forum "are likely to draw scrutiny during the confirmation process, especially among conservatives who question whether she would interpret the Constitution strictly or try to change policies through rulings." Neither article noted that the context of Sotomayor's comments makes clear that she was simply explaining the difference between district and appeals court justices.

As Media Matters for America has documented, Sotomayor was responding to a student who asked the panel to contrast the experiences of a district court clerkship and a circuit court clerkship. Sotomayor's remarks from the Duke panel discussion (beginning at approximately 40:00):

SOTOMAYOR: The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time.

The Wall Street Journal itself noted the context of Sotomayor's remarks in a May 26 article:

The now infamous Duke speech: For starters, there's the speech she gave at Duke back in 2005. Click here for the YouTube video. The controversial quote: "Court of appeals is where policy is made. And I know this is on tape and I shouldn't say that because we don't make law . . . I know. . . I'm not promoting it, I'm not advocating it . . . "

In that same speech, Sotomayor explained the difference between judging at the trial court level and judging at the appeals court level: "When you're on the district court, you're looking to do justice in the individual case, so you're looking much more to the facts of the case than you are to the application of the law because the application of the law is not precedential, so the facts control. On the court of appeals, you're looking to how the law is developing so that it will then be applied to a broad class of cases. So you're always thinking about the ramifications of this ruling on the next step of the development of the law."

According to NBC News justice correspondent Pete Williams, "[E]ven some conservatives and followers of strict constructionism have said that [Sotomayor] was only stating the obvious: that trial judges, district court judges, decide only the cases before them, and that appeals courts, because they are the, you know, above the other courts, do set policy; they do make precedent that governs the other courts." Indeed, the Oxford Companion to the Supreme Court of the United States (2005) notes that federal appellate courts do in fact have a "policy making" role.

As Media Matters has noted, CNN, Fox News, MSNBC and ABC are among the other media outlets that have misled on Sotomayor's remark that the "court of appeals is where policy is made."

From the May 27 Wall Street Journal article:

In introducing his first Supreme Court nominee, Mr. Obama highlighted the 54-year-old New Yorker's "extraordinary journey" from a Bronx housing project to the Second Circuit Court of Appeals in New York. "It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works," he said.

Conservative opponents questioned the usefulness of "empathy" as a qualification. They will have ammunition as they seek to paint Ms. Sotomayor as a liberal activist and strong backer of affirmative action who would use the Supreme Court to make law, not interpret it. A video from Duke University in 2005 shows Ms. Sotomayor proclaiming the "court of appeals is where policy is made."

"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," said Alabama Sen. Jeff Sessions, the top Republican on the Judiciary Committee. Mr. Obama hopes for hearings in July.

Judge Sotomayor would replace Justice David Souter, a George H.W. Bush nominee who became a reliable vote in the court's liberal block. She likely would echo his positions on divisive issues including abortion, affirmative action and gun control.

From the May 27 USA Today article:

Sotomayor's remarks at a 2005 legal conference at Duke University's law school are likely to draw scrutiny during the confirmation process, especially among conservatives who question whether she would interpret the Constitution strictly or try to change policies through rulings.

"The court of appeals is where policy is made," Sotomayor said during the conference.

She then quickly added, "I know this is on tape and I should never say that, because we don't make law, I know. Um, OK. I know. I'm not promoting it, I'm not advocating it."

White House spokesman Robert Gibbs said Sotomayor's career proves "this is not somebody that you could reasonably argue advocates for or is engaged in legislating from the bench."

 

Conservatives React To Historic Supreme Court Nominee By Smearing Sotomayor As "Racist," "Bigot"

http://mediamatters.org/items/200905270013

Since President Obama nominated Judge Sonia Sotomayor to the Supreme Court, numerous conservative media figures have smeared her as a racist and a bigot. In doing so, these media figures have frequently cited -- and misrepresented -- remarks she made during a speech at the University of California-Berkeley School of Law, in which she asserted, "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." Specifically, Rush Limbaugh claimed Sotomayor is a "reverse racist"; radio host Mark Levin called her a "bigot"; and Glenn Beck claimed Sotomayor made "one of the most outrageous racist remarks I've heard. ... She sure sounds like a racist."

As Media Matters for America has documented, media figures have misrepresented Sotomayor's Berkeley remarks. For example, Fox News host Megyn Kelly said that Sotomayor was claiming "that Latina judges are obviously better than white male judges." In fact, Sotomayor was specifically discussing the importance of diversity in adjudicating race and sex discrimination cases.

Indeed, former Bush Justice Department lawyer John Yoo has similarly stressed that Supreme Court Justice Clarence Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience. Thomas himself, in responding to the question during his confirmation hearing of why he "want[ed] this job," said in part: "I believe ... that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does."

Numerous conservative media figures have accused Sotomayor of racism or bigotry since her nomination to the Supreme Court:

• During the May 26 broadcast of his show, Limbaugh said of Sotomayor: "So here you have a racist. You might -- you might want to soften that, and you might want to say a reverse racist. And the libs, of course, say that minorities cannot be racists because they don't have the power to implement their racism. Well, those days are gone, because reverse racists certainly do have the power to implement their power. Obama is the greatest living example of a reverse racist, and now he's appointed one."

• During the May 26 broadcast of his radio show, Levin claimed of "so-called moderate" Democratic senators voting on Sotomayor: "These people need to understand that if they vote to confirm a radical leftist -- and I will now say what I actually believe -- who is a bigot -- that's right, I said it -- then they need to pay a political price for this." Levin later said he wanted to "defend my position that I believe this nominee is bigoted":

LEVIN: Let me defend my position that I believe this nominee is bigoted. New York Times of all places, May 15th -- we will link to all this on marklevinshow.com. In 2001, Sonia Sotomayor gave a speech declaring that the ethnicity and sex of a judge, quote, "may and will make a difference in our judging." She said, quote, "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."

Now I'm sure they'll spin it. I'm sure they'll attack those of us who see something like this as a red flag, but there is no way -- there is no way you can justify a statement like that other than a bigoted statement. That's not based on somebody's content or character, as Martin Luther King would say. That's based on a generalized statement about race and ethnicity. That statement alone -- that statement alone should disqualify her. Period.

While Levin said he "actually believe[d]" that Sotomayor is a "bigot," Levin later claimed he didn't believe she is "a bigot per se, but her comment was certainly bigoted":

CALLER: Yeah. I mean, well, other than the fact that she's a bigot. I mean, but, you know, she's a horrible choice.

LEVIN: All right --

CALLER: Anyway, Mark, just wanted your thought on that -- on that legal perspective. But God bless, man. And --

LEVIN: All right, you too. Thank you.

Now I don't know that I would say she's a bigot per se, but her comment was certainly bigoted -- the one that I've read. And if that is her view, and if that is something she has told other people, then there is a serious question. There's just no question about that.

• On the May 26 edition of his Fox News program, Beck said Sotomayor's "wise Latina" comments "smacks of racism" and is "one of the most outrageous racist remarks I've heard." Beck later claimed:

BECK: I don't like the charges of, "Oh, you're a racist. They're a racist." Very few people are racist.

There are racists and they're bad people. And -- but it's -- most Americans are good, just decent people, and I hate the charges and cries of racism. But when I hear this -- I mean, gee. She sure sounds like a racist here.

• On the May 27 broadcast of his radio program, Beck similarly claimed of Sotomayor: "I think she's a racist. I think she has decided things based on race." From Premiere Radio Networks' The Glenn Beck Program:

BECK: Well, we've got a -- we've got a Supreme Court justice nominee that is going to be all compassionate and empathetic. I think she's a racist. I think she has decided things based on race. I think she says that a Hispanic woman with the experience of being a Hispanic woman can make decisions that a white man can't make.

I can't imagine -- I can't imagine saying that. That's like saying, "You know what? Hispanics can't make money decisions like them Jews." Can you imagine that? I mean, they just can't -- "Look, I don't mean any offense by that. It's just that Hispanics, they're generally on the lower end of the economic spectrum, and Jews, they have so much experience with money and running financial things. They can -- Jews can just make financial decisions that Hispanics can't."

Who would say that? Who would say that? In what setting besides a Klan rally -- that strangely had respect for Jews in this one case -- in what setting would that be said that everybody wouldn't go, "Wow, you're a racist"?

I guess, it's just, again, you need to be the right person in the right class with the right point of view. That is not a healthy sign. It's not a healthy sign that we're talking about putting that person to now decide what the law says.

• On the May 26 broadcast of his radio show, CNN host Lou Dobbs called Sotomayor's "wise Latina" comments "racist." Dobbs also added of Sotomayor's nomination: "This is pure, pure absolute pandering to the Hispanics, and, you know, filling in the box on one more minority -- that who is actually, you know, they are actually a majority -- and that is women."

• During the May 26 edition of Fox News' America's Newsroom, Kelly described Sotomayor's "wise Latina" remarks as "reverse racism" and said it was "[l]ike she's saying that Latina judges are obviously better than white male judges." Kelly later added, "I've looked at the entire speech that she was offering to see if that was taken out of context, and I have to tell you ... it wasn't."

• During the May 26 edition of Fox News' The Live Desk, Fox News contributor Tucker Carlson claimed that Sotomayor had said that "because of your race or gender, you're a better or worse judge; that female, Latina judges are likely to render wiser decisions than white male judges." Carlson continued, "That's a racist statement, by any calculation."

• During the May 27 broadcast of ABC's Good Morning America, columnist Ann Coulter claimed of Sotomayor's "wise Latina" comments: "It is a racist statement, and I think it does a disservice to women and minorities that we're supposed to be empathizing for by suggesting they do have a different way of deciding cases."

• A May 27 Washington Examiner editorial, headlined, "The racist jurisprudence of Sonia Sotomayor," accused Sotomayor of "blatant racism": 

But it is her 2001 comment to a Berkley [sic] Law School audience that is most revealing of Sotomayor's ethnocentric jurisprudence: "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life." It is not hard to imagine the outcry that would greet a white male nominee who suggested that his ethnicity and experience would enable him to reach better conclusions than a minority who had lived a different sort of life. He would be dismissed as a racist, and rightly so. Is President Obama now asking that we look the other way when blatant racism comes from an Hispanic woman of otherwise solid achievement?

• In a May 27 Denver Post column, Vincent Carroll claimed Sotomayor's "wise Latina" comments were an "expression of bigotry":

If racial and gender bigotry truly have no place in American public life today, then Judge Sonia Sotomayor, during her confirmation hearing for a seat on the U.S. Supreme Court, needs to utterly repudiate her 2001 assertion that "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."

Putting that statement "in context" or explaining what she "really meant" will not do. Nor can Judge Sotomayor credibly argue that her assertion was an ill-considered mistake, since it was part of a prepared speech at the Berkeley school of law. No, she needs to reject it as the expression of bigotry that it was.

Even then she'd be getting off easy. After all, as Stuart Taylor wrote last weekend in the National Journal, "Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority."

Sotomayor, by contrast, is on the verge of a lifetime post on the most powerful court in the land.

While Sotomayor's comparison of the relative wisdom of Latina women and white men has garnered most of the attention in her Berkeley speech, it was hardly her only eyebrow-raising remark that day. After wondering "whether by ignoring our differences as women or men of color we do a disservice both to the law and society," she then added, "Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address."

Is she really suggesting that men and women, as well as people of different races, "have basic differences in logic and reasoning" in approaching legal issues? Once again, can you imagine a prominent white male saying such a thing without a legion of critics demanding that he do public penance?

From the May 26 broadcast of Premiere Radio Networks' The Rush Limbaugh Show:

LIMBAUGH: So here you have a racist. You might -- you might want to soften that, and you might want to say a reverse racist. And the libs, of course, say that minorities cannot be racists because they don't have the power to implement their racism. Well, those days are gone, because reverse racists certainly do have the power to implement their power. Obama is the greatest living example of a reverse racist, and now he's appointed one.

From the May 26 broadcast of ABC Radio Networks' The Mark Levin Show:

LEVIN: Again, next hour, you won't want to miss it, we're going to get much more heavily into this. We're going to hear some audio, some statements. And I'll put it in context for you, because we have to fight these things. They keep rolling over -- "Ah, well, they're going to get her anyway." Ah, excuse me. There are some so-called moderate Democrats: [Sen. Ben] Nelson of Nebraska, Landfill [Sen. Mary Landrieu] of Louisiana, [Sen. Evan] Bayh of Indiana.

These people need to understand that if they vote to confirm a radical leftist -- and I will now say what I actually believe -- who is a bigot -- that's right, I said it -- then they need to pay a political price for this. These are lifetime appointments. This isn't the deputy associate director of jelly beans. This is a Supreme Court justice.

[...]

LEVIN: Let me defend my position that I believe this nominee is bigoted. New York Times of all places, May 15th -- we will link to all this on marklevinshow.com. In 2001, Sonia Sotomayor gave a speech declaring that the ethnicity and sex of a judge, quote, "may and will make a difference in our judging." She said, quote, "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."

Now I'm sure they'll spin it. I'm sure they'll attack those of us who see something like this as a red flag, but there is no way -- there is no way you can justify a statement like that other than a bigoted statement. That's not based on somebody's content or character, as Martin Luther King would say. That's based on a generalized statement about race and ethnicity. That statement alone -- that statement alone should disqualify her. Period.

[...]

CALLER: Well, you know what, Mark? I think that that one comment that she made where policy is made --

LEVIN: Oh, yeah.

CALLER: -- on the federal -- at the Court of Appeals, I think that comment alone should disqualify her, because right there --

LEVIN: I do, too.

CALLER: I'm sorry?

LEVIN: That's one of them. There's others as well.

CALLER: Yeah. I mean, well, other than the fact that she's a bigot. I mean, but, you know, she's a horrible choice.

LEVIN: All right --

CALLER: Anyway, Mark, just wanted your thought on that -- on that legal perspective there. But God bless, man. And --

LEVIN: All right, you too. Thank you.

Now I don't know that I would say she's a bigot per se, but her comment was certainly bigoted -- the one that I've read. And if that is her view, and if that is something she has told other people, then there is a serious question. There's just no question about that.

From the May 26 edition of Fox News' Glenn Beck:

BECK: OK. And I want to get into this because I think she's made one of the most outrageous racist remarks I've heard. We'll get into that here in just a second when we come back.

[...]

BECK: Here's what our Supreme Court justice nominee said in a lecture at UC Berkeley School of Law in 2001. She said: "I would hope that a wise Latino woman with the richness of her experiences would more often than not reach a better conclusion as a judge than a white male who hasn't lived that life."

Gosh, that smacks of racism, but maybe it's just me, Ed.

M. EDWARD WHELAN III (Ethics and Public Policy Center president): Well, any white male who made the equivalent of that statement would readily be indicted for racism. Look, what she's talking about is that it's perfectly acceptable for her to draw on her own values in deciding what the law means. That's a recipe for lawlessness.

And we see that, actually, when we look at the way she decided an important case that's now pending before the Supreme Court involving firefighters in New Haven who are denied promotions on the basis of their race.

These are white and Hispanic firefighters who passed a promotional exam that the city had established. The city then decided it didn't like the racial profile of those who had passed and then threw out the exam.

And Sonia Sotomayor, in this case, had no empathy for these firefighters who had worked hard and studied to take this exam. And she and her colleagues worked to bury their claims before anyone could have any idea what had actually happened to them -- really remarkable shenanigans that a Clinton appointee and a fellow Hispanic, Judge Jose Cabranes, exposed. And thanks to him, the case is now in front of the Supreme Court. And --

BECK: So -- look, you know, both of you guys, I don't like the charges of, "Oh, you're a racist. They're a racist." Very few people are racist.

There are racists and they're bad people. And -- but it's -- most Americans are good, just decent people, and I hate the charges and cries of racism. But when I hear this -- I mean, gee. She sure sounds like a racist here. Do you think she's a racist, Randy?

RANDY BARNETT (Georgetown University Law Center professor): Well, I'm a full-time law professor and I can tell you that statements like that are relatively commonplace in academia, in legal academia and other forms of academia. So I'm sure that she felt rather comfortable in making a statement like that. And I think people just get used to saying things like that without necessarily thinking them through.

  

Ten Things To Know About Judge Sonia Sotomayor

Allen County Democratic Party: A few things about Judge Sotomayor
By Karen Goldner

From Moveon.org - personally, I like #7 the best: Ten Things To Know About Judge Sonia Sotomayor 1. Judge Sotomayor would bring more federal judicial experience to the bench than any Supreme Court justice in 100 years.
Allen County Democratic Party - http://allencountydemocrats.typepad.com/allen_county_democratic_p/

 1. Judge Sotomayor would bring more federal judicial experience to the bench than any Supreme Court justice in 100 years. Over her three-decade career, she has served in a wide variety of legal roles, including as a prosecutor, litigator, and judge.

2. Judge Sotomayor is a trailblazer. She was the first Latina to serve on the Court of Appeals for the Second Circuit and was the youngest member of the court when appointed to the District Court for the Southern District of New York. If confirmed, she will be the first Hispanic to sit on the U.S. Supreme Court.

3. While on the bench, Judge Sotomayor has consistently protected the rights of working Americans, ruling in favor of health benefits and fair wages for workers in several cases.

4. Judge Sotomayor has shown strong support for First Amendment rights, including in cases of religious expression and the rights to assembly and free speech.

5. Judge Sotomayor has a strong record on civil rights cases, ruling for plaintiffs who had been discriminated against based on disability, sex and race.

6. Judge Sotomayor embodies the American dream. Born to Puerto Rican parents, she grew up in a South Bronx housing project and was raised from age nine by a single mother, excelling in school and working her way to graduate summa cum laude from Princeton University and to become an editor of the Law Journal at Yale Law School.

7. In 1995, Judge Sotomayor "saved baseball" when she stopped the owners from illegally changing their bargaining agreement with the players, thereby ending the longest professional sports walk-out in history.

8. Judge Sotomayor ruled in favor of the environment in a case of protecting aquatic life in the vicinity of power plants in 2007, a decision that was overturned by the Roberts Supreme Court.

9. In 1992, Judge Sotomayor was confirmed by the Senate without opposition after being appointed to the bench by George H.W. Bush.

10. Judge Sotomayor is a widely respected legal figure, having been described as "...an outstanding colleague with a keen legal mind," "highly qualified for any position in which wisdom, intelligence, collegiality and good character would be assets," and "a role model of aspiration, discipline, commitment, intellectual prowess and integrity."

May 26 2009 show notes | Thom Hartmann
o Obama has declared: “We need somebody who's got the heart, the empathy, to recognize what it'slike to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old-and that's the ... ranking Judiciary Committee member Jeff Sessions (R-Ala.) and John McCain (R-Ariz.). … McCain, who has been extraordinarily sensitive to those trends (if unable to fight them) might be the real bellwether here: He's been a pretty ...
Thom Hartmann - http://www.thomhartmann.com/

Media Inaccurately Refer to Sotomayor as Child of Immigrant Parents
By Joshua Holland, AlterNet
Just bad reporting, or a case of "othering"? Read more »

Sotomayor 'a Near Lock' for an Easy Confirmation?
By Steve Benen, Washington Monthly
"How can the GOP seriously oppose the first potential Hispanic Supreme Court justice, given their outreach to Latinos in 2006 and 2008 ..." Read more »

Conservatives' Crazy Reactions to Obama's Supreme Court Nominee
By Chris Bowers, Open Left
These comments are how you know Sotomayor is a positive. Read more »

Sotomayor Spin Wars Have White House Working Overtime

Officials acknowledge the need to control the narrative of Sotomayor's life story, to muffle fusillades from conservative talk-radio hosts and bloggers. Read More

Discrimination Case Could Pose Problems for Sotomayor

A lawsuit by Connecticut firefighters is shaping up to be the most contentious case in which Sonia Sotomayor participated, one sure to provoke sharp questioning when the Senate begins consideration of her nomination to the Supreme Court. Read More

Fearful of Latino Losses, GOP Cautious with Sotomayor

Republicans were spoiling for a party-unifying Supreme Court fight -- until they saw their adversary. Read More

For Obama, a Low-Risk High Court Choice

By Adriel Bettelheim, CQ Staff

President Obama had no prior acquaintance with the woman he would nominate to the Supreme Court, unlike the three other finalists he considered for the slot being vacated by retiring associate justice David H. Souter .

But over the course of a one-hour meeting with Sonia Sotomayor at the White House on May 21, and a subsequent six-hour session with his vetting staff, Obama became convinced that the jurist’s life story and broad legal experience would diversify the high court’s lineup and fulfill his goal of appointing a judge with a common touch, according to senior administration officials.

Around 8 o’clock Monday night, after a day of attending Memorial Day commemorations at Arlington National Cemetery and golfing at Fort Belvoir in Virginia, Obama settled on the 54-year-old judge on the 2nd U.S. Circuit Court of Appeals. He called her and then the other finalists from his study in the East Wing of the White House.

Obama was well-acquainted with the other candidates: 7th Circuit Court of Appeals Judge Diane P. Wood, Homeland Security Secretary Janet Napolitano and Solicitor General Elena Kagan. Obama had taught alongside Wood at the University of Chicago law school and, of course, named the other two women to prominent posts in his administration.

Though Sotomayor is outspoken and has been derided as a judicial activist by conservatives, the nomination is viewed inside the White House as a relatively low-risk pick.

Administration officials believe Sotomayor’s compelling personal narrative — growing up in a single-parent household in a public housing project in the Bronx, overcoming childhood diabetes, excelling in school and going on to Princeton, then Yale Law School — embodies the American dream. Becoming the first Latin American to serve on the 2nd Circuit also confirms her status as a pathbreaker, a role she would remain in as the first Hispanic woman justice, if confirmed.

And though she has rendered numerous decisions over her 18 years as a trial and appellate judge, comparatively few dealt with lightning-rod issues like abortion that customarily capture public attention during confirmation hearings. Sotomayor also has a relatively clean paper trail: unlike some Supreme Court nominees, she has not authored provocative law review articles and did not dispense legal opinions as a member of a previous presidential administration.

Combined, these factors convinced Obama that Sotomayor would get a fairly swift Senate confirmation hearing, or at least leave dissenters with few politically palatable options for scuttling the nomination.

“What Sonia will bring to the court ... is not only the knowledge and experience acquired over a course of a brilliant legal career, but the wisdom accumulated from an inspiring life’s journey,” Obama said Tuesday, in introducing Sotomayor.

The politics of race was a significant factor in the decision, according to experts. Adam J. Segal, director of the Hispanic Voter Project at Johns Hopkins University, said the selection of Sotomayor acknowledged the strong showing Obama had with Latino voters in last year’s election and the important role Hispanic voters will play sustaining a long-term Democratic majority.

“The Hispanic community and its leaders were looking to the White House to take more steps to recognize them, and this is the most powerful and important step the president could take,” Segal said. “I sense it will have a very long-term impact that will benefit Obama and the Democratic party.”

Administration officials were intrigued by the possibility of making a non-traditional pick in the form of a politician like Napolitano or Michigan Democratic Gov. Jennifer M. Granholm . But they concluded it would complicate and delay the confirmation process, by forcing the Senate to debate the degrees to which it should consider stump speeches and other remarks made outside a judicial setting.

As it is, the debate over Obama’s nomination is likely to take on a different, new media quality. Already, conservative critics are pointing to a YouTube video of Sotomayor from a 2005 Duke University Law School conference, during which she made an offhand remark that the appellate court is “where policy is made.” Critics cite is as evidence the judge does not intend to exercise judicial restraint.

Page: 1  2

 

Conservative Hypocrisy On Judge Sonia Sotomayor

By Bernie Horn

President Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court has sparked a firestorm of denunciation from the right-wing noise machine. But it will take a truckload of hypocrisy for Republican Senators to even begin to block her nomination.

Sonia Sotomayor is exactly the kind of person that any thinking American would want on the Supreme Court. She is superbly experienced, serving as a judge on the United States Court of Appeals for the Second Circuit—one of the most respected courts in America—for the past decade. She also served as a federal trial court judge, presiding over about 450 cases. Sotomayor will bring more federal judicial experience to the Supreme Court than any justice in 100 years!

Sotomayor has a compelling life story: Born to a Puerto Rican family, she grew up in a public housing project in the South Bronx. Through hard work and perseverance, she went on to graduate from Princeton summa cum laude and Phi Beta Kappa, and Yale Law School, serving as an editor of the Yale Law Journal.

From a political point of view, Sotomayor has extraordinary bipartisan credentials. She was appointed to the federal bench by President George H.W. Bush. When she was confirmed by the Senate for the appeals court post in 1998, she was supported by 25 Republicans, including seven who remain in the Senate today: Richard Lugar (IN), Susan Collins (ME), Olympia Snowe (ME), Thad Cochran (MS), Judd Gregg (NH), Robert Bennett (UT), and Orrin Hatch (UT).

Nevertheless, conservatives are already attacking Sotomayor as “too liberal,” too much a “judicial activist,” and not “intellectual” enough. Just wait until they get their marching orders from the ideologues and sharpen the right-wing message!

The bottom line is that Sotomayor will be confirmed by the Senate and the only question is—just how hypocritical will Republicans be? Just four years ago, Senate Republicans were up in arms over the possibility that Democrats might filibuster against the most extreme of President Bush’s judicial nominees. In 2005, conservatives threatened to invoke the “nuclear option,” a parliamentary maneuver in the Senate which would override a filibuster and confirm judicial nominees on a straight majority vote.

At that time, most of the Republicans now in the Senate said that it was wrong, or even unconstitutional, to filibuster a judicial appointment. Our friends at Media Matters have set up a webpage that provides all the relevant quotes. For example: …

 

CNN's Borger, Schneider baselessly conflate judicial "activist[s]" with liberal judges

http://mediamatters.org/items/200905260043

On the May 26 edition of CNN Newsroom, CNN political analyst Gloria Borger said that "there's clearly going to be a debate about whether" Supreme Court nominee Sonia Sotomayor "would be too much of an activist judge. And, you know, this is -- this is a debate that we've heard time and time again between conservatives and liberals about how you approach the bench." Later, CNN political analyst Bill Schneider said Republicans "want to picture her as a liberal activist, and she has made a few statements in the past indicating that she wants to take an activist position on the bench -- that she believes life experience should be relevant." In making these remarks, Borger and Schneider advanced the baseless conservative claim that judicial activism is solely a "liberal" practice, when at least two studies -- looking at two different sets of criteria -- have found that the most "conservative" Supreme Court justices have been the biggest judicial activists.

A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder indicated that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the most frequent practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress. Indeed, Gewirtz and Golder found that Justice Clarence Thomas "was the most inclined" to do so, "voting to invalidate 65.63 percent of those laws." Those most frequently labeled "liberal" were the least likely to strike down statutes passed by Congress, according to the study. Gewirtz and Golder also noted that the word "activist" is "rarely defined":

When Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.

A recently published study by Cass R. Sunstein (recently named by President Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism -- the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court's "conservative" justices were the most likely to engage in "judicial activism," while the "liberal" justices were most likely to exercise "judicial restraint."

From the 10 a.m. ET hour of CNN Newsroom on May 26:

HEIDI COLLINS (co-host): Let me ask you, though, about the political side of things. Because, clearly, it seems that we have also learned this morning one of the biggest issues is going to be how quickly this confirmation process begins and ends, if you will, trying to get to the August break.

BORGER: Right. And when you talk to people at the White House, they will point out that this is somebody who has been voted on twice in the Senate, once by a voice vote. For example, somebody in the White House pointed out to me that Orrin Hatch, senior member of the Judiciary Committee, has actually voted for her confirmation twice. So he's on the record voting for her twice.

And conservatives, however, are really pointing out that the target that they're looking at in terms of her qualifications is that she will allow her feelings to stand in the way of basic fairness. And that's a quote from a conservative talking points that we've just gotten here.

COLLINS: Specifically, what do they mean? What issues do they think, or at least are you hearing, that could happen?

BORGER: Well, they believe that not so much in her court decisions, but that she has spoken freely. They quote from a 2002 speech that she gave at Berkeley in which she stated she believes it's appropriate for a judge to consider their, quote, "experiences as women and people of color," which she said should, quote, "affect our decisions."

That is something that conservatives believe should not affect judicial decisions. They believe that's too activist. Clearly, President Obama believes that it should.

COLLINS: Well, is that a -- is that a fair argument, as we watch the doors of the East Room open here. Now, obviously, we are getting closer to the president coming to the microphone.

BORGER: It's two different approaches to the way a judge should adjudicate. And I think you're going to see that played out in the United States Senate. I don't think there's any doubt about her qualifications to serve. The White House points out she's the most qualified appointee in 70 years. But --

COLLINS: Why is that?

BORGER: Well, because she served -- because of where she served in the federal appeals bench, et cetera, et cetera. But they also, you know, there's clearly going to be a debate about whether she would be too much of an activist judge. And, you know, this is -- this is a debate that we've heard time and time again between conservatives and liberals about how you approach the bench. It's going to be a very interesting argument we're going to hear in the Senate.

COLLINS: Yeah, very much so. So last question for you, Gloria: You think it's all going to happen before August?

BORGER: Well, you know, the White House clearly has a quick timetable on this. I think it could well happen before the Congress leaves for its August recess.

COLLINS: OK. Very good. Gloria Borger, thanks so much -- our CNN senior political analyst. I want to take a minute to talk a little more about the politics of this pick. Republicans and Democrats alike have been waiting for this choice, of course. Joining us now is senior political analyst Bill Schneider -- Bill, good morning to you.

SCHNEIDER: Good morning.

COLLINS: What are you hearing on the topic?

SCHNEIDER: Well, I'm hearing that conservatives are fired up and ready to go. They -- she was on the list of possible nominees, and they've been compiling a dossier on her. A lot of the statements like the one that Gloria mentioned are in those dossiers. They intend to bring them up. They want to picture her as a liberal activist, and she has made a few statements in the past indicating that she wants to take an activist position on the bench -- that she believes life experience should be relevant.

But that is one reason why the president picked her. He said he wanted someone of empathy; someone who can relate to ordinary Americans. She once described herself as a down-to-earth litigator, and that's what she expects to be as a judge. I'm not going to be able to spend too much time on lofty ideals. That's what the president was looking for, and that's what he appears to have appointed.

 

Obama Pick Sonia Sotomayor Reflects America

posted by JOHN NICHOLS on 05/26/2009 @ 08:45am

When Supreme Court Justice David Souter announced his planned retirement, the pressure was on President Obama to add a second woman to a bench.

At the same time, Obama was encouraged to pick a Hispanic justice.

He did both, and a good deal more.

Obama's nomination of Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit as his first appointment to the high court, was made at the White House this morning, with the president hailing her as "an inspiring woman who I think will make a great justice."

Describing Sotomayor as a lawyer who "has worked at almost every level of our judicial system," Obama noted that she has "more experience on the bench and more varied experience of the bench than anyone currently serving on the Supreme Court when they were appointed."

While much will be made of the fact that Obama has chosen a woman of Puerto Rican background to serve on a court that until the 1960s was made up entirely of white men, the president has, as well, chosen a jurist whose specific experience will make her a key player on a court that, in coming years, will be taking on more and more cases involving financial and economic issues.

Judge Sotomayor's 11 years of service on the federal appeals bench (as an appointee of Bill Clinton) have been served just a few blocks from Wall Street in Manhattan, as were her six years as a federal judge (as an appointee of George H.W. Bush as the recommendation of former New York Senator Daniel Patrick Moynihan).

"As the top federal appeals court in the nation's commercial center," the New York Times notes, "the court is known in particular for its expertise in corporate and securities law."

Obama specifically cited Sotomayor's legal skills with regard to financial and corporate issues as something that made her particularly appealing as a nominee.

The daughter of a factory worker who died when she was a child, Sotomayor -- who diagnosed with diabetes as an eight year old -- was raised by her mother, a nurse at a methadone clinic. Inspired by "Perry Mason" television programs, Sotomayor graduated from Princeton University summa cum laude in 1976 and then from Yale Law School, where she was an editor of the Yale Law Journal.

Before her appointment to the federal bench, Sotomayor served as an assistant district attorney for Manhattan, , working with D.A. Robert Morgenthau, who developed a reputation for policing -- or at least trying to police -- Wall Street.

Obama picked Sotomayor from a slate of women finalists that reportedly included Judge Diane P. Wood of Chicago, Homeland Security Secretary Janet Napolitano and Solicitor General Elena Kagan.

Sotomayor was not the most liberal of the prospective jurists, but that did not matter to conservatives who have been preparing for a fight. Wendy Long, counsel to the right's Judicial Confirmation Network, came out swinging: "Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written. She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench."

That's a reference to a case involving applications for promotions within the New Haven, Connecticut fire department, in which Sotomayor was a member of a judicial panel that objected to tests used to evaluate candidates for promotion when no minority candidates ranked at the top of the list of those who took the test.

That white male jurists agreed with Sotomayor will be lost on her critics. But her record is generally seen as being very much in the mainstream of legal debates about diversity and affirmative action.

The swift strike at this nominee provides a reminder of how important this confirmation battle will be to conservatives, who see the fight to block Obama's first high-court pick as essential to the renewal of their sagging political fortunes.

But Sotomayor will have plenty of allies.

Even before the nomination was announced, National Organization for Women president Kim Gandy announced that NOW would launch a "Confirm Her" campaign to ensure swift confirmation of the nominee.

"Nominated to serve as the third woman and first Hispanic on the Supreme Court in the history of the United States, Judge Sotomayor will serve the nation with distinction. She brings a lifelong commitment to equality, justice and opportunity, as well as the respect of her peers, unassailable integrity, and a keen intellect informed by experience. President Obama said he wanted a justice with 'towering intellect' and a 'common touch' and he found both in Judge Sotomayor," said Gandy. "What more do women want? We want a swift confirmation in the U.S. Senate, and Associate Justice Sotomayor to join Ruth Bader Ginsburg on the Court before the Senate's August recess."

 

http://judiciary.senate.gov/about/members.cfm

Patrick J. Leahy Chairman, D-Vermont Biography

Herb Kohl D-Wisconsin Biography

Jeff Sessions Ranking Member, R-Alabama Biography

Dianne Feinstein D-California Biography

Orrin G. Hatch R-Utah Biography

Russell D. Feingold D-Wisconsin Biography

Charles E. Grassley R-Iowa Biography

Charles E. Schumer D-New York Biography

Jon Kyl R-Arizona Biography

Richard J. Durbin D-Illinois Biography

Lindsey Graham R-South Carolina Biography

Benjamin L. Cardin D-Maryland Biography

John Cornyn R-Texas Biography

Sheldon Whitehouse D-Rhode Island Biography

Tom Coburn R-Oklahoma Biography

Ron Wyden D-Oregon Biography-

Amy Klobuchar D-Minnesota Biography

Edward E. Kaufman D-Delaware Biography

Arlen Specter D-Pennsylvania Biography

 

Racial Discrimination Judge Sotomayor's most high-profile case, Ricci v. DeStefano, concerns white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement. Joining an unsigned opinion of a three-judge panel of the appeals court, Judge Sotomayor upheld the rejection of a lawsuit by white firefighters, one of them Hispanic, claiming race discrimination and, as part of the full appeals court, she declined to rehear the case. The Supreme Court is currently considering the case, and Justice Anthony M. Kennedy is the likely swing vote. Among the questions in the case is whether the law should treat diversity in the work force differently from diversity in the classroom. Judge Sotomayor dissented in part in an earlier case, Gant v. Wallingford Board of Education, finding that race discrimination had occurred when a school demoted a black child from first grade to kindergarten. “The school did not give the black student an equal chance to succeed (or fail).” —DISSENT IN GANT V. WALLINGFORD BOARD OF EDUCATION, 1999 Related Documents Ricci v. DeStefano (2008) Top Lawsuits Against Federal Contractors An opposition memo on Judge Sotomayor cites her ruling in a case about lawsuits against federal contractors to claim that she is "willing to expand constitutional rights beyond the text of the Constitution." The case concerns an inmate who lived in a fifth-floor room while serving a federal prison sentence for securities fraud. He was allowed to use the elevator because of congestive heart failure, but when a guard had him climb the five flights, he had a heart attack, fell down the stairs and suffered an injury. He sued the company that ran the halfway house for the federal Bureau of Prisons. As part of the appeals court, Judge Sotomayor emphasized precedents that permitted suits against companies performing state government functions. The Supreme Court reversed Judge Sotomayor, ruling 5 to 4 that only individual agents, not corporations, may be sued for such violations. Justice Stevens - joined by Justices Souter, Ginsburg, and Breyer - dissented. “Extending Bivens liability to reach private corporations furthers [its] overriding purpose: providing redress for violations of constitutional rights.” (Bivens was a 1971 Supreme Court case that allowed some people whose rights have been violated by federal agents to sue.) —MAKESKO V. CORRECTIONAL SERVICES CORPORATION, 2000 Related Documents Makesko v. Correctional Services Corporation Top Environment In a defeat for environmental groups, the Supreme Court ruled this term that the Environmental Protection Agency may use cost-benefit calculations to decide whether to require power plants to make changes that could preserve aquatic organisms. The case mostly concerned the meaning of a phrase in the Clean Water Act that requires the power plants' cooling structures to "reflect the best technology available for minimizing adverse environmental impact." Judge Sotomayor had previously ruled that weighing the costs of the changes against the value of the organisms in dollars was not permitted by the law. Instead, the EPA could consider only what cost "may reasonably be borne" by the power plants. When her ruling was overturned by the Supreme Court, Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and David H. Souter, dissented, saying that cost-benefit analysis was prohibited by the law and pernicious in practice. “Congress has already specified the relationship between cost and benefits in requiring that the technology designated by the EPA be the best available.” —RIVERKEEPER V. ENVIRONMENTAL PROTECTION AGENCY Related Documents Riverkeeper v. Environmental Protection Agency (2007) Top Workplace Discrimination: Disabilities Some of Judge Sotomayor's more prominent opinions on discrimination concern people with disabilities. In one case, Judge Sotomayor ruled that a law school graduate with a reading and learning disability was entitled to extra time in taking the bar exams. After the Supreme Court decided that people are not protected under the Americans With Disabilities Act if they can function normally by wearing glasses, taking medication or otherwise compensating for their disabilities, it told the Second Court to reconsider its decision in this case. Judge Sotomayor again found that the woman was disabled, and must be given accommodations, writing that test scores alone were not enough to diagnose a disability. Another case concerned a trucking company that rejected applicants who were taking some medications. Judge Sotomayor dissented from the majority, writing that Hunt, the company, had determined the applicants were "substantially limited in the major life activity of working," and not, as the, majority found, merely "unsuited for long-distance driving of Hunt's 40-ton trucks on irregular stressful schedules." “By its very nature, diagnosing a learning disability requires clinical judgment.” —BARTLETT V. NEW YORK STATE BOARD OF LAW EXAMINERS Related Documents Bartlett v. New York State Board of Law Examiners (1999) E.E.O.C. v. J.B. Hunt Transport (2003) Top International Law Some of her Judge Sotomayor's most notable decisions have come in child custody and complex business cases. One case concerned a child of divorced parents who lived in Hong Kong. The mother had sole custody of the child and the father had "reasonable access." The mother took the child to New York, and the father filed a petition for return of the child to Hong Kong. A custody order said the child could not be removed from Hong Kong without the consent of the father or the Hong Kong court, and the case centered on whether this clause confers "rights of custody" under the Hague Convention on International Child Abduction. If it did, it would require the child's return to Hong Kong. On appeal, the court ruled the removal was not wrong because the father did not possess rights of custody. In her dissenting opinion, Judge Sotomayor argued that a broader interpretation of "custody" was more in line with the "object and purpose" of the Convention, and that this was how foreign courts had considered the issue. The question in this case, Croll v. Croll, is before the Supreme Court in Abbott v. Abbott. Another case concerned jurisdiction. Federal courts can hear cases between "citizens of a State and citizens or subjects of a foreign state." According to British law, citizens of Bermuda are "nationals," but not "subjects." A panel found, therefore, that federal jurisdiction did not apply. Judge Sotomayor dissented, writing that the Constitution used "citizen" and "subject" to refer to a range of relationships. “The people of Bermuda would be undoubtedly surprised to learn that they are ‘stateless’ ” —KOEHLER V. BANK OF BERMUDA Related Documents Dissenting Opinion, Croll v. Croll (2000) Koehler v. Bank of Bermuda (2000) Top Second Amendment Judge Sotomayor rejected a claim that a New York ban on a martial arts weapon (a nunchuka) violated a man's Second Amendment rights, explaining the Second Amendment only applies to the federal government. In this case, Maloney v. Cuomo, the court noted that the Supreme Court's ruling in District of Columbia v. Heller, which struck down parts of the District's gun control law, did not invalidate this principle, and "to the extent that Heller might be read to question the continuing validity of this principle," earlier Supreme Court rulings took precedence in the case. “The Second Amendment applies only to limitations the federal government seeks to impose on this right.” —OPINION OF THE COURT, INCLUDING JUDGE SOTOMAYOR, MALONEY V. CUOMO (2009) Related documents Maloney v. Cuomo Top Abortion On the Circuit Court, Judge Sotomayor has been involved in few controversial issues like abortion. In one case, she denied a claim brought by an abortion rights group challenging a Bush policy that prohibited foreign organizations that receive foreign funds from performing or supporting abortions. Another case concerned the definition of "refugee," which includes victims of coercive family-planning practices. The Second Circuit ruled that this definition does not extend to unmarried partners of women forced to abort their pregnancies. Judge Sotomayor joined a concurring opinion which said it was unnecessary to consider whether the definition extended to legal spouses, because this particular case dealt with Chinese men and their girlfriends, not their wives. “The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position.” —THE CENTER FOR REPRODUCTIVE LAW AND POLICY V. BUSH Related Documents CRLP v. Bush (2001) Lin v. Department of Justice (2007) Top Rules of Evidence In 1999, for instance, she refused to suppress crack cocaine found by police officers who were executing a warrant that had been vacated 17 months before but never deleted from a police database. That kind of error, Judge Sotomayor said, did not require suppression. The Supreme Court came to the same conclusion in January, a decade after Judge Sotomayor's decision. “The [Supreme] Court held that evidence seized in objectively reasonable reliance on a search warrant that is subsequently declared invalid should not be excluded.” —>U.S. V. SANTA (2001) Related Documents U.S. v. Santa (2001) Top Strip Searches In a 2004 dissent, Judge Sotomayor seemed to be in agreement with Justice Ruth Bader Ginsburg's observation in a recent interview with USA Today that female judges can be more sensitive to claims that strip searches of young girls are unduly intrusive. The majority opinion in the 2004 case, by two male judges, upheld the legality of some strip searches of girls held at juvenile detention centers in Connecticut. In her dissent, Judge Sotomayor wrote that the majority had not been attentive enough to "the privacy interests of emotionally troubled children" who "have been victims of abuse or neglect, and may be more vulnerable mentally and emotionally than other youths their age." That was in line with Justice Ginsburg's questioning from the bench last month in Safford Unified School District v. Redding, which concerned what she called a "humiliating" strip search of a 13-year-old middle school student by school officials in Arizona. In her dissent, Judge Sotomayor also emphasized how "embarrassing and humiliating" the searches of the girls in Connecticut had been. "The officials inspected the girls' naked bodies front and back, and had them lift their breasts and spread out folds of fat," Judge Sotomayor wrote. “Our caselaw consistently has recognized the severely intrusive nature of strip searches and has placed strict limits on their use.” —N.G. AND S.G. V. CONNECTICUT Related Documents N.G. and S.G. v. Connecticut Top Additional Cases of Judge Sonia Sotomayor Walczyk v. Rio (2007) In this case, which concerned a longstanding property dispute and references to a potential "blood bath," Judge Sotomayor wrote a separate opinion on "qualified immunity," under which an officer cannot be found liable for behavior that was objectively reasonable under existing law. Hankins v. Lyght (2006) Involves a minister forced to retire at age 70, and age discrimination. Judge Sotomayor dissented, writing that the Age Discrimination in Employment Act does not apply to employment suits against religious institutions by their leaders. Krimstock v. Kelly (2002) Ruled that after an automobile is seized in a criminal case (for example, the cars of those accused of drunk driving), a prompt hearing must be held to determine whether the vehicle can be held, pending the actual forfeiture hearing. Confirmation Documents 1997 Senate Judiciary Committee Questionnaire Questionnaire for her appointment to the federal appeals court 1992 Senate Judiciary Committee Questionnaire Questionnaire for her appointment to the federal district court Top Wash. Times, CQ uncritically report criticism that Sotomayor's Supreme Court reversal rate is "high" http://mediamatters.org/items/200905270038 In a May 27 article headlined "Sotomayor reversed 60% by high court," The Washington Times uncritically quoted Conservative Women for America president Wendy Wright saying that Supreme Court nominee Judge Sonia Sotomayor's Supreme Court reversals -- which the Times reported as three of five cases, or 60 percent -- were "high." Similarly, on May 26, Congressional Quarterly Today uncritically quoted (subscription required) Wendy Long, counsel to the Judicial Confirmation Network, claiming that Sotomayor "has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court." In fact, contrary to the claim that a reversal rate of 60 percent is "high," data compiled by SCOTUS blog since 2004 show that the Supreme Court has reversed more than 60 percent of the federal appeals court cases it considered each year. The Times reported that "[t]hree of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents." The article then quoted Wright's assertion that Sotomayor's "high reversal rate alone could be enough for us to pause and take a good look at her record." But according to data compiled by SCOTUS blog, Sotomayor's reported 60 percent reversal rate is lower than the overall Supreme Court reversal rate for all lower court decisions from the 2004 term through the present -- both overall and for each individual Supreme Court term. Using SCOTUS blog's data, Media Matters for America has also calculated the reversal rate for only federal appeals court decisions:

Milbank joins smear campaign challenging Sotomayor's intellect

http://mediamatters.org/items/200905270019

As purported evidence that President Obama "opted for biography over brain," Dana Milbank asserted in his May 27 Washington Post column: "As a legal mind, [Supreme Court nominee Judge Sonia] Sotomayor is described in portraits as competent, but no Louis Brandeis. Nor is Sotomayor, often described as an abrasive jurist, likely to be the next Earl Warren. But her bio is quite a hit." In doing so, Milbank echoed recent attacks on Sotomayor's intellect. However, Media Matters for America has identified numerous "portraits" -- by law scholars and legal professionals who have worked with Sotomayor -- in which she is described as "highly intelligent" and even "brilliant."

For instance, in a May 5 post on the blog PrawfsBlawg LLC, Rob Kar, a former clerk for Sotomayor, addressed the "spurious comments that have been emerging from people who are less familiar with her." Kar wrote that Sotomayor is "an absolutely brilliant jurist and anabsolutely brilliant person" [emphasis in original]. He continued:

I count myself privileged to have worked closely with some of the very best minds in the world, in both law (at Yale Law School and in the legal academy) and philosophy (at both Harvard College and the University of Michigan's graduate school, which was widely considered the best department in ethics in the world when I was there.) Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter. (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.) Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this. And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are -- quite frankly -- pedantic in comparison.

Moreover, in a May 26 statement reported by The New York Times, Manhattan District Attorney Robert M. Morgenthau -- who hired Sotomayor as a district attorney in 1979 -- wrote that "[t]hroughout her career Judge Sotomayor has shown that she possesses the wisdom, intelligence, collegiality and good character needed to fill the position for which she has been nominated." Morgenthau was also quoted in a May 27 New York Law Journal article as saying Sotomayor "was highly intelligent, practical, understood the street, very tough, very fair and always prepared." The article also quoted Judge Jon O. Newman -- Sotomayor's colleague in the 2nd U.S. Circuit Court of Appeals -- as saying she is "a brilliant lawyer and a very sound and careful judge." Newman also said on the May 26 edition of CNN Newsroom that Sotomayor is "first and foremost an outstanding legal mind. She's a brilliant person and an outstanding judge. Those are the essential qualities that qualify her for the Supreme Court."

As Tom Goldstein noted on SCOTUSblog, "Opponents' first claim -- likely stated obliquely and only on background -- will be that Judge Sotomayor is not smart enough for the job" because "[t]he public expects Supreme Court Justices to be brilliant." Goldstein added: "The objective evidence is that Sotomayor is in fact extremely intelligent. Graduating at the top of the class at Princeton is a signal accomplishment. Her opinions are thorough, well-reasoned, and clearly written. Nothing suggests she isn't the match of the other Justices." Goldstein is a partner at Akin Gump Straus Hauer & Feldmann LLP and "co-head" of the firm's "litigation and Supreme Court practices" who "teaches Supreme Court Litigation at both Stanford and Harvard Law Schools."

From Milbank's May 27 Washington Post column:

It was an unusual way to introduce the woman who would succeed Justice David Souter, but Sotomayor's nomination is itself a bit of a curveball.

Some thought Obama would nominate Judge Diane Wood or Solicitor General Elena Kagan -- big brains who could serve as a counterweight to the court's conservative philosophers. Others expected a well-known politician such as Michigan Gov. Jennifer Granholm.

In selecting Sotomayor, Obama opted for biography over brain. As a legal mind, Sotomayor is described in portraits as competent, but no Louis Brandeis. Nor is Sotomayor, often described as an abrasive jurist, likely to be the next Earl Warren. But her bio is quite a hit. In Spanish, her surname can be translated as "big thicket" -- and that's just where Republicans could find themselves if they oppose this up-from-poverty Latina.

 

There has been much in the media over the past day or so (as well as on BuzzFlash) about how ridiculous Republicans would have to be to block President Obama's nominee to replace Supreme Court Justice David Souter. So what does that make a Democrat who would filibuster Judge Sonia Sotomayor? What if that Democrat was previously a member of the Gang of 14, a group that worked to prevent filibusters on President George W. Bush's judicial nominees?

On Fox News this past Sunday (before Obama officially nominated Sotomayor), Sen. Ben Nelson (D-NE) announced that he reserved the right to vote for a filibuster of an Obama Supreme Court nominee. He said the "extraordinary circumstances" that would give him reason to do so would be if Obama nominated an "activist judge."

No word yet on whether Nelson considers Sotomayor an activist. Yesterday, in response to Obama's nomination, the senator issued a cautious statement ending thusly:

"Concerning Judge Sotomayor’s nomination, I look forward to examining her entire record and commitment to upholding the law and Constitution of the United States in the coming weeks."

There's really no clear definition as to what exactly is an activist judge according to Nelson, but apparently none of President George W. Bush's nominees were. Nelson was the only Democrat to vote for Janice Rogers Brown, one of Bush's most conservative and controversial judicial picks, and was one of only a couple of Democrats who supported Samuel Alito and John Roberts for the Supreme Court and John Bolton for UN ambassador. Nelson also backed both John Ashcroft and Alberto Gonzales for Attorney General.

Nelson explained in an op-ed for the Omaha World Herald that his only criteria for a "good judge" is one that is not an activist. How did he know Alito was not an "activist judge?" Well, because Alito told him so, of course.

In my meeting with Judge Alito on Nov. 2, he assured me that he was carrying no political agenda to the bench. I asked him if he envisioned himself carrying a hammer and chisel and looking to forge new law. He assured me that he would consider each case on its merits and would bring no agenda to the bench.

The open secret about the politicization of the judiciary in this country is that right-wing judges are just as "activist" -- if not more so -- than left-wingers. The myth about the Supreme Court being a group of impartial umpires is especially strong, but categorically false. Supreme Court Scholar Jeffrey Toobin recently called out Chief Justice Roberts for faithfully serving the interests and values of the GOP. Jeffrey Rosen, the writer who began the whisper campaign against Sotomayor before she was nominated, called Alito a "conservative activist... [willing to] overstep judicial boundaries to further right-wing ideology," and threw Justices Clarence Thomas and Antonin Scalia in that category as well.

Nelson went on in that same 2005 op-ed mentioned above to insist that Bush's nominees deserved an up-or-down vote (in other words, no anonymous holds or filibusters):

The president's nominees, especially to the Supreme Court, deserve an up-or-down vote, even if the nominee isn't popular with the special-interest groups in Washington. As a former governor who appointed the entire Nebraska Supreme Court and the entire Nebraska Court of Appeals and more than half the current judges in Nebraska, I understand how important appointments are to our judicial system.

Of course, Obama's nominees don't deserve the same privilege. With his previous record on judicial nominees, it would be extremely hypocritical for Nelson to oppose Sotomayor on judicial activism. Claiming she isn't qualified will be a tough argument to make as well: The Obama Administration pointed out that Sotomayor would begin her Supreme Court tenure "with more federal judicial experience than any new justice in 100 years."

Further, for Nelson to filibuster Sotomayor would put him in a special group of Republicans. You know, the intolerant ones. As I noted yesterday, Obama talked about race as much as he ever talks about race, merely brushing up against the historicity of Sotomayor's nomination. That hint was enough for conservatives who listen to hear a warning that opposition to the Puerto Rican appellate judge will appear racist to some. That's especially true when you call her "Maria" instead of "Sonia," as Mike Huckabee did in a formal statement he put out yesterday (and then whitewashed on his PAC site soon after the mistake was noted). Ah well; Maria, Sonia. They're all the same, right?

As Time Magazine put the conundrum:

Obama has chosen a mainstream progressive, rather than a wild-eyed liberal. And he has chosen a rags-to-riches Hispanic woman. Her life story is inspirational — a political consultant's dream. Since she is certain to be confirmed, there are plenty of smart conservatives who will, by midday Tuesday, have done the political cost-benefit analysis: at a time when Republicans are trying to demonstrate that their party can reach beyond rich white men, what mileage is there in doing anything but celebrating such a historic choice?

Sotomayor's nomination seems to be making strange legal bedfellows as well. One would think that avoiding being in the same camp as the notoriously wrong-headed lawyer John Yoo would by itself be enough to not filibuster Sotomayor. Yoo contends that Sotomayor would twist the Constitution to suit her own beliefs, which is way different than twisting legal opinions to fit the desires of one's clients.

But if we want to apply logic here, Nelson's position is even more confusing. Why would a Democrat want to further identify himself with a party that seems increasingly lost at sea, and one that has recently and repeatedly intoned a distaste for moderates?

This blogger supposes that Nelson's intransigence on the similar issue of cloture for Obama's OLC nominee Dawn Johnson might have been related to some unnamed quid pro quo, or aspayback for Obama's crackdown on student loan companies.

Blogger David Dayen posits that it's merely the position of thorn in Obama's side that Nelson is going for:

Nelson has seen the vacuum for a moderate that can hijack the presidential agenda and stepped right into it -- giving himself a lot of glory and cable news appearances. He's like a force of nature, as well as a creature of the peculiar institution of the Senate.

Or perhaps it's electoral. Nelson may be betting the pendulum will swing back to Republican congressional dominance just in time for his second reelection in 2012.

Whatever the reason for Nelson's calculations, the question should be raised as to whether Democrats even want Nelson in the party. When one considers the fact that the filibuster-proof majority is a total myth, numbers mean less. Besides, what is the point in counting someone in those 60 cloture votes who is planning on filibustering Sotomayor? That doesn't even make mathematical sense.

Nelson votes against Democrats more frequently than with them. Recently, he's been the best at it, beating out Sen. Arlen Specter (R cum D-PA) at his own game this year. Even Joe Lieberman (I-CT) blows this guy out of the water. It's not just his stance on the judiciary and being militantly pro-life, either. Nelson suggested this week that he approved of both torture and having Gitmo detainees shipped off anywhere but here for military tribunals.

According to the Center for Responsive Politics, in the current campaign cycle Nelson has given 61 percent of his PAC donations to Republicans. In fact, the largest amount he donated was $123,000 to a PAC run by House Minority Whip Eric Cantor (R-VA) called "Every Republican is Crucial." That's right; even the ones who haven't been hatched yet.

Nelson gets nothing from leaving the party in power to join a divided GOP other than a Specter reception (and the fact that the RNC has more money and fewer incumbents to spend it on than the DNC). In conservative Nebraska, Nelson will make it through primary season as a Democrat with ease, and there's no reason for the RNC to mount a serious effort to defeat him in the general election.

Similarly, the Democratic Party gains nothing by kicking out Nelson, out other than the pure satisfaction of ejecting him. I say if that pariah wants to keep his donkey costume, the DNC should let him come to the show, but take away his free drink tickets. In other words, Nelson can caucus, but his reelection campaign fund shouldn't have one blue cent in it.

 

Will baselessly claims Sotomayor "embraces ... idea of categorical representation"

http://mediamatters.org/items/200905270006

In his May 27 Washington Post column, George Will baselessly claimed that Supreme Court nominee Judge Sonia Sotomayor "embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender, or sexual preference is, and members of a particular category can be represented -- understood, empathized with -- only by persons of the same identity." Will made this assertion after noting that, in a 2001 speech, Sotomayor said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life." In fact, in that speech -- almost immediately after the part Will quoted -- Sotomayor stated that she "believe[s] that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable."

As Media Matters for America has noted, Fox News host Megyn Kelly, among others, misrepresented Sotomayor's "wise Latina" comment, claiming she suggested "that Latina judges are obviously better than white male judges." In fact, Sotomayor was specifically discussing the importance of judicial diversity in determining race and sex discrimination cases.

From Sotomayor's 2001 speech, published in 2002 in the Berkeley La Raza Law Journal:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge [Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice [Benjamin] Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

From Will's May 27 Washington Post column:

[National Journal columnist Stuart] Taylor has also noted this from a Sotomayor speech to a Hispanic group: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life." Says Taylor, "Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: 'I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life' -- and had proceeded to speak of 'inherent physiological or cultural differences.' "

Her ethnicity aside, Sotomayor is a conventional choice. The court will remain composed entirely of former appellate court judges. And like conventional liberals, she embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender, or sexual preference is, and members of a particular category can be represented -- understood, empathized with -- only by persons of the same identity.

 

Grassley: Democrats Started 'Borking,' GOP Won't 'Rubber Stamp' Sotomayor
In an exclusive Newsmax.TV interview, Sen. Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, said Democrats had set "precedent" by the "Borking" of Republican nominees to the high court. They could now expect "Republicans to follow precedent" with its review of nominee Sotomayor. He also warned that Republicans would not "rubber stamp" her selection nor would he rule out a Republican filibuster. 
Read the Full Story -- Go Here Now

See the Video - Go Here Now

Limbaugh: She's a 'Reverse Racist, Hack'

 

_______________ Below The Line ______________

MoveOn Remains Silent on Wars in Iraq, Afghanistan and Pakistan

Submitted by davidswanson on Wed, 2009-05-27 10:25.

By Tom Hayden, AlterNet.

The most powerful grassroots peace movement organization, MoveOn, has not pushed Obama or Congress on U.S. conflicts raging across the planet.

The most powerful grassroots organization of the peace movement, MoveOn, remains silent as the American wars in Iraq, Afghanistan and Pakistan simmer or escalate.

The executive director of MoveOn, Justin Ruben, met with President Obama in February, told the president it was “the moment to go big,” then indicated that MoveOn would not be opposing the $94 billion war supplemental request, nor the 21,000 additional troops to Afghanistan, nor the increased civilian casualties from the mounting number of Predator attacks. [See Ari Melber, The Nation, Feb. 27, 2009]

What was MoveOn’s explanation for abandoning the peace movement in a meeting with a president the peace movement was key to electing? According to Ruben and MoveOn, it was the preference of its millions of members, as ascertained by house meetings and polls.

The evidence, however, is otherwise. Last December 17, 48.3 percent of MoveOn members listed “end the war in Iraq” as a 2009 goal, after health care [64.9%], economic recovery and job creation [62.1%], and building a green economy/stop climate change [49.6%, only 1.5% ahove Iraq.] This was at a moment when most Americans believed the Iraq War was ending. Afghanistan and Pakistan were not listed among top goals which members could vote on.

Then on May 22 MoveOn surveyed its members once again, listing ten possible campaigns for the organization. “Keep up the pressure to the end the war in Iraq” was listed ninth among the options.

Again, Afghanistan and Pakistan were not on the MoveOn list of options.

Nor was Guantanamo nor the administration’s torture policies. “Investigate the Bush Administration” was the first option.

MoveOn is supposed to be an Internet version of participatory democracy, but the organization’s decision-making structure apparently assures that the membership is voiceless on the question of these long wars.

What if they included an option like “demanding a diplomatic settlement and opposing a quagmire in Afghanistan and Pakistan?”  Or “shifting from a priority on military spending to civilian spending on food, medicine and schools?”

This is no small matter. MoveOn has collected a privately-held list of five million names, most of them strong peace advocates. The organization’s membership contributed an unprecedented $180 million for the federal election cycle in 2004-2006. Those resources, now squelched or sequestered, mean that the most vital organization in the American peace movement is missing in action.

What to do? There is no point raving and ranting against MoveOn. The only path is in organizing a dialogue with the membership, over the Internet, and having faith that their voices will turn the organization to oppose these escalating occupations. The same approach is necessary towards other vital organs of the peace movement including rank-and-file Democrat activists and the post-election Obama organization [Organizing for America], through a persistent bottom-up campaign to renew the peace movement as a powerful force in civil society.

This is not a simple matter of an organizational oligarchy manipulating its membership, although the avoidance by MoveOn’s leadership is a troubling sign. There is genuine confusion over Afghanistan and Pakistan among the rank-and-file. The economic crisis has averted attention away from the battlefront. Many who voted for Obama understandably will give him the benefit of the doubt, for now.

Silence sends a message. The de facto MoveOn support for the $94 billion war supplemental reverberates up the ladder of power. Feeling no pressure, the Congressional leadership has abdicated its critical oversight function over the expanding wars, not even allowing members to vote for a Decmber report on possible exit strategies. In the end, a gutsy sixty voted against HR 2346 on May 14, but many defected to vote for the war spending, including Neil Abercrombie, Jerry Nadler, Obey, Xavier Becerra, Lois Capps, Maurice Hinchey, Jesse Jackson, Sheila Jackson-Lee, Patrick Kennedy, Charles Rangel, Lucille Roybal-Allard, Loretta Sanchez, Rosa De Lauro, Bennie Thompson, Jerry McNerney, Robert Wexler, and Henry Waxman. [Bill Delahunt, Linda Sanchez and Pete Stark were not recorded].

If there were significant pressures from networks like MoveOn in their Congressional districts, the opposition vote might have approached 85.

Appropriations chair David Obey in essence granted Obama a one-year pass to show results in Afghanistan. If the war appears to be a quagmire by then, he claimed, the Democrats will become more critical. Speaker Nancy Pelosi delivered the same message; according to the Washington Examiner on May 6: “There won’t be any more war supplementals, so my message to my members is, this is it.” Pelosi’s words were carefully parsed, saying that the White House would not be allowed another supplemental form of appropriation, which is different from an actual pledge to oppose war funding.

This one-year pass means that the grass-roots peace movement has a few months to light a fire and re-awaken pressure from below on the Congress and president. In the meantime, here are some predictions for the coming year:

IRAQ: Will Obama keep his pledge to withdraw combat forces from Iraq on a 16-month timetable, and all forces by 2011? At this point, the pace is slowing, and the deadline being somewhat extended, under pressure from US commanders on the ground. Sunnis are threatening to resume their insurgency if the al-Maliki regime fails to incorporate them into the political and security structures. The President insists however, that he is only making adjustments to a timetable that is on track. Prognosis: precarious.

AFGHANISTAN: Will the Obama troop escalation deepen the quagmire or be a successful surge against the Taliban by next year? Another 21,000 troops and advisers are on their way to the battlefield. Civilian casualties are mounting, causing the besieged Karzai government to complain. Preventive detention of Afghans will only expand. US deaths, now over 600, are sure to increase this summer. Taliban may hold out and  redeploy in order to stretch US forces thin. Prognosis: escalation into quagmire.

PAKISTAN: US policies have driven al Qaeda from Afganistan into Pakistan’s tribal areas, where US is attacking with Predators and turning Pakistan’s US-funded armed forces towards counterinsurgency. Public opinion is being inflamed against the US intervention. Prognosis: an expanding American war in Pakistan with greater threats to American security.

IRAN: With or without US complicity, Israel may attack Iran early next year, with unforeseeable consequences in Iraq and Afghanistan. Prognosis: crisis will intensify. 

GLOBAL: US will fail to attract more combat troops to fight in Afghanistan and Pakistan from Europe or elsewhere, causing pressure to increase for a non-military negotiated  solution. Prognosis: Obama still popular, US still isolated.

BUDGET PRIORITIES: Iraq, Afghanistan and Pakistan will deeply threaten the administration’s ability to succeed on the domestic front with stimulus spending, health care, education and alternative energy. Prognosis: false hope for “guns and butter” all over again.

Tom Hayden was a leader of the student, civil rights, peace and environmental movements of the 1960s. He served 18 years in the California legislature, where he chaired labor, higher education and natural resources committees. He is the author of ten books, including "Street Wars" (New Press, 2004). He is a professor at Occidental College, Los Angeles, and was a visiting fellow at Harvard's Institute of Politics last fall.

 

Petraeus Endorses Obama's Plans To Close GITMO, End Torture ...
By BetelG 
Will the noble General Petraeus, master of the surge, shining hero of the GOP after he was so viciously smeared by MoveOn.org now feel the wrath of the Limbaugh? He did agree with something Obama wants to do, whatever it was, ...
1: User Blogs - http://www.drudge.com/

Ross Douthat Thinks We Should Bring Back Puritanism

Posted by Tana Ganeva at 4:00 PM on May 26, 2009.

 

Douthat shows, once again, how deeply bereft of good ideas the conservative movement is.

According to the 5 millionth study released on the subject just this week, American women are afflicted with a deep-seated  dissatisfaction ... or  unhappiness ... or malaise ... you know, a "problem with no name", just like that other problem Betty Friedan wrote about in the 1960s. Except that this time around, everyone can blame feminism!

That’s what Ross Douthat does in a New York Times op-ed, (very loosely based on the study) that the NYT chose to highlight with a slot on their online front page.

On some fronts — graduation rates, life expectancy and even job security — men look increasingly like the second sex. But all the achievements of the feminist era may have delivered women to greater unhappiness.

Douthat also chalks up the crushing dissatisfaction plaguing women to another terrible development: the "advance" of single motherhood:

[Conservatives and liberals] should also be able to agree that the steady advance of single motherhood threatens the interests and happiness of women. Here the public-policy options are limited; some kind of social stigma is a necessity. But a new-model stigma shouldn’t (and couldn’t) look like the old sexism. There’s no necessary reason why feminists and cultural conservatives can’t join forces — in the same way that they made common cause during the pornography wars of the 1980s — behind a social revolution that ostracizes serial baby-daddies and trophy-wife collectors as thoroughly as the “fallen women” of a more patriarchal age.

Yes, instead of investing in resources to help single mothers, or a viable health care system, or secure reproductive rights, or a billion other public policy options, we should slut shame single mothers, and other alleged "sexual deviants". Then EVERYONE will be happy. Especially women.

But alas, in our hippie, anything-goes culture, publicly shunning people who have sex is not considered a viable policy option:

No reason, of course, save the fact that contemporary America doesn’t seem willing to accept sexual stigma, period. We simply don’t have the stomach for permanently ostracizing the sexually irresponsible — be they a pregnant starlet, a thrice-divorced tycoon, or even a prostitute-hiring politician.

In this sense, ours is a kinder, gentler, more forgiving country than it was 40 years ago. But for half the public, it’s an unhappier country as well.

With the failing conservative movement now primarily serving as a means for right-wing clowns to secure cushy, long-term contracts with Fox, the GOP is in dire need of fresh ideas to remain viable -- or in existence -- in the future. Ross Douthat's contribution? Advocating a return to Puritan America. 

 

___________The Bottom Line Right Wing Script___________

And Just Remember we have Clarence Thomas sitting.

A judge on the U.S. Court of Appeals for the Second Circuit, Sonia Sotomayor's biography is so compelling that many view her as the presumptive front-runner for Obama's first Supreme Court appointment. She grew up in the South Bronx, the daughter of Puerto Rican parents. Her father, a manual laborer who never attended high school, died a year after she was diagnosed with diabetes at the age of eight. She was raised by her mother, a nurse, and went to Princeton and then Yale Law School. She worked as a New York assistant district attorney and commercial litigator before Senator Daniel Patrick Moynihan recommended her as a district court nominee to the first President Bush. She would be the first Hispanic Supreme Court justice, if you don't count Benjamin Cardozo. (She went to Catholic schools and would also be the sixth Catholic justice on the current Supreme Court if she is, in fact, Catholic, which isn't clear from her official biography.) And she has powerful supporters: Last month, the two senators from New York wrote to President Obama in a burst of demographic enthusiasm, urging him to appoint Sotomayor or Ken Salazar.

Sotomayor's former clerks sing her praises as a demanding but thoughtful boss whose personal experiences have given her a commitment to legal fairness. "She is a rule-bound pragmatist--very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background," says one former clerk. "She grew up in a situation of disadvantage, and was able, by virtue of the system operating in such a fair way, to accomplish what she did. I think she sees the law as an instrument that can accomplish the same thing for other people, a system that, if administered fairly, can give everyone the fair break they deserve, regardless of who they are."

Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family--working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier of a Harry Potter movie.

But despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)

Not all the former clerks for other judges I talked to were skeptical about Sotomayor. "I know the word on the street is that she's not the brainiest of people, but I didn't have that experience," said one former clerk for another judge. "She's an incredibly impressive person, she's not shy or apologetic about who she is, and that's great." This supporter praised Sotomayor for not being a wilting violet. "She commands attention, she's clearly in charge, she speaks her mind, she's funny, she's voluble, and she has ownership over the role in a very positive way," she said. "She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?"

I haven't read enough of Sotomayor's opinions to have a confident sense of them, nor have I talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths. It's possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities. But they're not motivated by sour grapes or by ideological disagreement--they'd like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard. Given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble.

Jeffrey Rosen is the legal affairs editor at The New Republic.

AND LOOK AT THIS EARLY CALL!

http://www.esquire.com/features/most-influential-21st-century-1008

September 16, 2008, 12:00 PM

The 75 Most Influential People of the 21st Century

Sonia Sotomayor

54, judge, U.S. Court of Appeals for the Second Circuit, New York City

Because if Obama wins, she will be his first appointment to the Supreme Court.

http://www.huffingtonpost.com/2009/05/01/sonia-sotomayor-supreme-c_n_194470.html