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Thursday, July 16, 2009

Yes To Sotomayor

Yes, the Senate should vote Yes on the nomination of Sonia Sotomayor to be the next Justice of the United States Supreme Court. The main reason I reach this conclusion is that there is no compelling reason to vote no.

I watched about half of Sotomayor's testimony, and read reports about her testimony as well. Based on my observations, and what critics have said, there are reasons to vote no, but none of them are sufficiently compelling.

As to the "wise Latina" statement, Sotomayor's explanation was evasive, disingenuous, and at times non-sensical. As I have written before, I think Sotomayor meant what she said, and said what she meant. But her statements were nothing more than the commonplace racial and ethnic identity politics which permeate the Democratic party. The statements did not make her a "racist" or in and of themselves disqualify her from the Court in light of her record of judging, which does not display such tendencies in any measurable way.

I also do not believe that Sotomayor would want to be viewed as carrying a racial or ethnic agenda onto the Court. To carry that burden would minimize Sotomayor's accomplishments, denigrate her intelligence, and ultimately doom her to being a caricature. Having watched Sotomayor for hours, there is no doubt in my mind that she wants to be remembered as a great Justice. Whether she can reach that goal remains to be seen, but Sotomayor seems to appreciate that the politics of race and ethnicity will not be the road to get there.

The Ricci case also was troubling because Sotomayor punted a chance to give a thoughtful discussion to the issues when the case was before her, and her result and approach were wrong. But again, I do not perceive her to have been driven by a racial or ethnic agenda in that regard. She was wrong, but sometimes judges are wrong.

As to whether Sotomayor is qualified, there is no question that she meets whatever that minimal and ill-defined threshold happens to be. If she is not qualified, and does not truly understand constitutional law, as some contend, then she will not be a force on the Court, much like the person she is replacing. There may be a time to lay down the gauntlet over a nominee's qualifications, but this is not the time.

I put no stock in fear of a Hispanic backlash from a "no" vote. Judge her on the merits, and let the chips fall where they may. I also put no stock in wishful thinking that anything Republicans do will change the Democratic attack machine when it comes to Republican nominees.

In the end, I went on gut as well. Sotomayor came across as likable, genuine (other than as to the "wise Latina" statement) and a decent person. Maybe that is not enough, or even a requirement, but it sets her apart from so many of the Democratic Senators who are shepherding her through the process.

We should not give in to the enormous temptation to make a Democratic nominee pay for the disgusting treatment Democrats have visited on Republican nominees. Believe me, I would like to give it back to Democrats for the way they treated Robert Bork, Samuel Alito, and others.

But at the end of the day, we are not they, and we always should remember that. And be thankful.

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  1. The ridiculous spectacles of Senate confirmation processes are just one more reason to repeal the 17th Amendment.

  2. "But her statements were nothing more than the commonplace racial and ethnic identity politics which permeate the Democratic party."

    Then, she should have affirmed her "commonplace" views and not lied about them. So be it, if she could be confirmed, saying what she believes.

    If she had to lie, and if lying made the difference to be confirmed, then vote against the liar. The entire idea of law and justice is based on telling and discovering the truth. Voting for a lying judge is too horrible.

    This cannot be treated as a political position, where we sophisticates say "of course she/he is lying. He is a politician". That is bad enough.

    She is lying her way into a position of power and trust, where she will judge others on their adherence to the truth. That is enough to vote NO.


  3. Wow. I totally disagree with this post. If her statements (not statement, statements, she repeated this through the years) that a wise Latina would come to better judicial decisions than a white man are not evidence of bigotry, what would be? And this attitude obviously gets in the way of her job.

    And her Ricci decision is not just a "sometimes judges are wrong" moment, that decision is completely consistent with her ideology and her attitude. From what I've read (i.e. Gateway Pundit) she's been reversed by the Supreme Court about two thirds of the time. Also, as far as not wanting to be viewed as carrying an agenda on to the court: that's what she's there for, that's what Obama picked her for- their shared agenda. Of course she's bringing it to the court. I also disagree with your "turn the other cheek" attitude towards Democrat Supreme Court nominees. Holy cow. Whose side are you on? Ann Coulter has an awesome editorial on this subject right now. I agree it's necessary to pick your battles, and I think that with so much going on, on so many fronts, everybody thought they'd let Sotomayor go.

  4. This comment has been removed by the author.

  5. So, your position is that her extremely high reversal rate is insufficient to deny her a position on the Supreme Court, even though that reversal rate reeks of either ignorance of the law, wilful dismissal of the law, of poor application of the law to cases coming before her? If she is a lousy judge at a lower level, will she somehow—I know not how!—be transformed into an excellent judge at the SCt level, willing and able to provide a sound and rational legal argument for her holdings? Is that your argument, professor? I would be fascinated to read a further exposition of your position before I start going Richard III.

  6. One last thing: "In the end, I went on gut as well. Sotomayor came across as likable, genuine (other than as to the "wise Latina" statement) and a decent person."

    My goodness! The SCt is not a prize to be awarded to the winner of a Miss Congeniality competition, man! Sotomayor is a liar who lacks the courage of her convictions! How is that "genuine" or "decent"? Sotomayor perjured herself with her statements (or would have if she'd been under oath); disregarded the law entirely in deciding Ricci and other cases; insulted the citizenry, and this is what you want to see on the nation's highest court?!?!

    It's time to take the judiciary out of the hands of the legal beagles. It's time to either tear down the law schools or to have honest civilians teach law and ethics to legal beagle wannabes.

  7. Once again excusing and closing eyes to Anti White Anti Male hate and bigotry. I am sick of it. When is enough enough? Under ANY other Circumstance this nominee would have been DEAD on Arrival or forced to withdraw. Imagine a White Male making the same statement? Sorry William but I disagree.

  8. I usually find your blog to be full of common sense and sound judgment on many issues. On this one I'm not sure you've used the judgment you've shown to have in the past.

  9. It is just plain wrong to hand a respected judicial position to someone who is unashamedly a liar, but it is scandalously wrong to award an obvious unashamed liar with a position as the highest judge because it sends the message that unashamed obviously lying is a highly rewardable action that it is profitable to imitate.

    If being "evasive, ingenuous," and "non-sensical," meets the highest standards in the land, what kinds of behavior reflect standards that are merely high, or even average?

    The people of this country are in deep trouble, and no one more so than honest people of good conscious, who no longer have any place in the scheme of things.

  10. Excellent post! Keep up the great work!!

    ps. Link Exchange??

  11. The entire political/judicial system is corrupt and incompetent beyond redemption. Appoint Sotomayor, a proven racist/sexist semi-literate perjuror. The Supreme Court itself is a clown show, and one more clown will only improve its entertainment values.

  12. The other question is what sort of train wreck would be a potential replacement.
    As a notice that there are more people watching than on the 2nd Circuit, and so Ricci-style shenanigans are unacceptable, the hearings may have added some value.

  13. I say vote "yes" to Sotomayor. Reason: she's not too bright and might be swayed by Justice Roberts. A really intelligent pick would not allow that option.

  14. If we have to have a doctrinaire, liberal, activist Supreme Court Justice (and we will in any event), the best we can hope for is an incoherent one. So-So si!

  15. I could not disagree with this post more.

    "Sotomayor punted a chance to give a thoughtful discussion to the issues when the case was before her, and her result and approach were wrong. But again, I do not perceive her to have been driven by a racial or ethnic agenda in that regard."

    But still you think a yes vote is called for? The purpose for the hearings isn't whether or not she is likable nor is it a chance for Rs to get back at Ds for nominations past. If that's what you see this as, then you are mistaken. The last person we need back in the Supreme Court is another activist Judge. Ginsberg is gone so I say let's clean house and get some judges in there who can refrain from allowing emotional bias and/or bigotry to make the calls. The Ricci case was crystal on that. Don't be fooled by the act. Of course she is going to come across as charming as she can. This is make or break time for her regarding this post. The Al Franken "Perry Mason" question was the epitome of going through the motions as far as the Ds were concerned because they don't see this as a confirmation hearing. They see it as getting a formality out of the way so that she can get to work overturning Constitutional law.

  16. IMO, "no" would have to be based upon the inconsistency between the approach, philosophy, etc. she testified to having and her writings, speeches, etc. prior to being nominated.

    Judge Sotomayor is essentially claiming her record is within the 'mainstream' claimed by her testimony. Republicans ought not accept that premise.

    With that said, there's a tactical reason to hope she gets confirmed - with a Democrat in the White House & a Democrat Senate, a nominee who's essentially a Latina Souter is about as good as we can hope for. Defeat Sotomayor and we'll get an 'impressive' true believer nominee.

    With that said, I'm open to changing my mind - anyone care to identify some opinions (other than Ricci, that's a given) where Sotomayor is left of Souter?

  17. I was almost convinced as I read your column. Almost. Then I read the comments and found myself returning to my original thinking: she is not qualified intellectually or morally to be on the SC. I would think Latinos would be the most insistent on this point, but I thought blacks would feel similarly about Obama and I was wrong. If either of them fall flat, and I believe both will to different degrees, it might actually set race relations back. The conclusion will be: "this is what affirmative action gives us." F

  18. I have to ask what in the world is going on in your mind. This begs the question of what kind of standards do we want for justices of the Supreme court of the United States. Is there anything like high standards any more, or should we accept that mediocrity now defines the American character?

  19. The compelling reason to vote "NO" is that Sotomayor is mediocre. This illustrates how damnable identity politics has become (and how entrenched). “Aww, Let the mediocre one in, the other eight can cover for her”. “We can shackle businesses with onerous work rules and they’ll still be able to compete”. I mean after all we can afford the plethora of luxury wasteful feel good programs; it’s not like we are in a recession or anything.

  20. I first visited this site a few months ago after some controversy or other. As I read the first paragraph of the post, I ticked off all the things that William Jacobson got wrong. There were a lot of them: very basic factual errors such as the names of people, their job titles, and so on. I had trouble believing that he's a law professor of some kind.

    Posts like this aren't helping. SS was a member of two far-left racial power groups, and she will - no matter how much Jacobson wants to dream - represent their interests on the Supreme Court. You can read about one such group here, and read my extensive coverage of the other group here.

    I've been covering immigration for over six years over thousands of posts, and I realize just how much damage someone like SS could do to the country. You don't know what you're in for.

    Please drop whatever you're doing, tune out distractions, and help push this plan. If you don't actually do something now, you'll be regretting it for decades.

  21. Mr. Jacobsen,

    Crap. Pure and unadulterated crap. A great big steaming pile of it.

    Judge Sotomayor was given ample opportunity to establish her position regarding her "wise Latina" remarks - plural - and backpedalled from the words so completely as to make her unbelievable. Either she meant what she said numerous times in the past, in which case she's a bigot and lying about it, or she didn't, in which case she's so clearly incapable of saying what she means as to make her unacceptable for the court.

    Her mangling of English in her testimony, after having been educated at Princeton of all places, borders on the absurd. To wit:

    Sotomayor: The first seven who are gonna be hired, because of the, uh vagrancies [sic] of the vacancies at that moment.

    Sotomayor: Under New York law, if you are being threatened with eminent [sic] death or very serious injury....

    Sotomayor: They build up a story [sic] of knowledge about legal thinking.

    Sotomayor: All questiosn of policy are within the providence [sic] of Congress first.

    Having both read, and heard these, I cannot imagine the world where the individual mangling the language in this manner on a stage this large should be regarded as anything other than a dolt.

    Princeton should be ashamed, as should the President for nominating her.

    No sir, Mr. Jacobsen. I've been given quite a clear picture of her lack of qualifications for such a position.

  22. I totoally agree with this post

  23. So because grievance politics permeates the Democrat party, it should be accepted and embraced? What kind of asinine logic is that? The American people mostly oppose her, the Supreme Court is not a place where we should be giving in to this nonsense because the Democrat party is being run by a bunch of ex 60's radicals at the moment. That will change, but Sotamayor will be on the court for a long time. Sheesh.

  24. "The compelling reason to vote "NO" is that Sotomayor is mediocre. This illustrates how damnable identity politics has become (and how entrenched). “Aww, Let the mediocre one in, the other eight can cover for her”. “We can shackle businesses with onerous work rules and they’ll still be able to compete”. I mean after all we can afford the plethora of luxury wasteful feel good programs; it’s not like we are in a recession or anything."

    Right Said Ed.

  25. The consensus from these comments is that Sotomayor is mediocre. Is that a negative? Since Obama only will nominate someone who has a liberal tilt, what is wrong with mediocrity in such a person? Do you want a liberal intellectual powerhouse on the Court, because that is who you are going to get next time around. There are enough questions about Sotomayor's positions on various issues that at worst she will be Souter, and at best she may give liberals some surprises.

  26. The politics have lots to do with how each nominee portray themselves. Sotomayor screwed up with her selfportrayol, but she got some Republican supporter at the end.

    It shows how Sotomayor is respected among the Republicans too. Whether the Republican senates oppose Sotomayor, she will get elected anyway.

  27. Do we have any idea of what Sotomayor thinks a 'great justice' is?

    Can she actually state the reasoning for incorporation with the 14th Amendment? One of the prime movers for the 14th was to ensure that blacks in the south could utilize their civil rights, including the 2nd as a means to defend themselves. There is no difference between ensuring that individuals can defend themselves, their property and their family between that time and now...

    Wouldn't a 'great justice' have some idea about this?

    She has backtracked, hemmed, hawed and generally tried to step away from her previous statements and works when they are in context of what audience she was speaking to or issue she was addressing. To me that is a problem of ethics. If you mean what you say stand by it. If you change your position say so. I would prefer that and knowing where an individual stands and why, rather than put someone into a lifetime position not knowing that. The SCOTUS is unique in that. Plus name the last three justices that went from generally liberal views to generally conservative ones... or ones that went from wanting an activist court to one that adheres to the letter of what is written.

    I would prefer a straight shooter from any part of the political spectrum to someone who tries to alter years of their positions at a nomination hearing. It doesn't matter if she is an ideological wash. I support ethics and integrity over ideology for those in government. We would have better government if we got that from our Incumbistani rulers...

  28. Gotta say i disagree with you here. My belief in equal justice before the law runs too deep to fritter it away.

    And really, to say that her wise latina shtick is typical... well, yes it is, but didn't your mother say something about if everyone else jumped off the brooklyn bridge?

    if i was in the senate, i would filibuster her, starting by reading her speech followed by o'connor's.

  29. Mr. Jacobson, So your argument is that Sotomayor being mediocre is "a feature not a bug"? If that's the case why didn't you state that originally instead of waiting until the comments? In rereading your argument I will admit that you do hint at it; but what a jaded and cynical view.

    Re-reading your words brings to mind two other questions (perhaps cynical on my part), "since when does being 'likable', 'geninue', and 'decent' mean you can make good decisions?" and "Why do guys like you always find such solace in losing with honor". We shouldn't be disgusting; but we should match the intensity of our opponents. After all, you don't bring a knife to a gun fight.

  30. <---Ed's "echo chamber"

    Ed makes some great points. We should also set term limits on Supreme Court justices so that we don't get held hostage by someone else's ideologies.