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June 2, 2009

The Anti-Sotomayor Stupidity Scorecard

We knew that many conservatives would fight back against anyone that President Obama nominated for the Supreme Court. They've had about a week now to go at Judge Sonia Sotomayor, so I thought I'd do a rundown of the top ten stupidest arguments against her, where they came from and what to do about it.

Stupid Argument #1 - She's really not that smart

Barnes: "She's not particularly impressive. She's not the smartest or the best, doesn't write the best opinions..."

Rove: "I’m not really certain how intellectually strong she would be, she has not been very strong on the second circuit."

Rove again, responding to the statement "she is very smart": "Not necessarily...I know lots of stupid people who went to Ivy League schools."

The Counter - First, I admit that I'm puzzled about that last Karl Rove quote. Someone that he knows who went to Ivy League schools but isn't necessarily actually smart? I just can't think of anyone who fits that description, can you?

"Coming from a housing project in the Bronx, Sotomayor ended up graduating summa cum laude and Phi Beta Kappa from Princeton. She also was a co-recipient of the M. Taylor Pyne Prize, the highest honor Princeton awards to an undergraduate. Sotomayor then went to Yale Law School, where she served as an editor of the Yale Law Journal and managing editor of the Yale Studies in World Public Order. " [Think Progress]

"Her American story and three decade career in nearly every aspect of the law provide Judge Sotomayor with unique qualifications to be the next Supreme Court Justice. She is a distinguished graduate of two of America's leading universities. She has been a big-city prosecutor and a corporate litigator. Before she was promoted to the Second Circuit by President Clinton, she was appointed to the District Court for the Southern District of New York by President George H.W. Bush. She replaces Justice Souter as the only Justice with experience as a trial judge. Judge Sotomayor served 11 years on the Court of Appeals for the Second Circuit, one of the most demanding circuits in the country, and has handed down decisions on a range of complex legal and constitutional issues...In addition to her distinguished judicial service, Judge Sotomayor is a Lecturer at Columbia University Law School and was also an adjunct professor at New York University Law School until 2007." [Whitehouse.gov Blog]

"Sonia is an outstanding colleague with a keen legal mind. She brings a wealth of knowledge and hard work to all her endeavors on our court. It is both a pleasure and an honor to serve with her." - Judge Richard C. Wesley, George W. Bush appointee to the Second Circuit

"[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." - Judge John O. Newman, Sotomayor's colleague on the Second Circuit

Let me start with the obvious conclusion that anyone would draw if they were to get to know Judge Sotomayor and her work both intimately and deeply: she is an absolutely brilliant jurist and an absolutely brilliant person...indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter." - Law professor Rob Kar, who clerked for Judge Sotomayor

Further Reading:

Stupid Argument #2 - She's not qualified and is just an affirmative action candidate

Perpetrators - Fred Barnes, Pat and Bay Buchanan, and others

Barnes: "I think you can make the case that she’s one of those who has benefited from affirmative action over the years tremendously."

Pat Buchanan called her an "an affirmative action pick" and said, "The lady is a lightweight", while Bay Buchanan claimed, "This is an affirmative action nominee. She is not the best and the brightest...She is not qualified in my opinion."

The Counter - This argument is obviously related to the claims about Sotomayor's intelligence in #1, and it's just as stupid. It's one thing to argue against specific statements or opinions of Sotomayor, or to take issue with her judicial philosophy, but the argument that she's stupid or unqualified for the nomination just falls flat. We already covered her academic achievements above, but let's recap - summa cum laude and Phi Beta Kappa from Princeton, where she also received the highest academic honor given to undergraduates, then on to Yale Law School where she was editor of the Yale Law Journal.

After law school she served as an Assistant District Attorney in Manhattan for five years, and then entered private practice where she served as a civil litigator. "Her judicial service began in October 1992 with her appointment to the United States District Court for the Southern District of New York by President George H.W. Bush. Still in her 30s, she was the youngest member of the court. From 1992 to 1998, she presided over roughly 450 cases. As a trial judge, she earned a reputation as a sharp and fearless jurist who does not let powerful interests bully her into departing from the rule of law.

...President Clinton appointed Judge Sotomayor to the U.S. Court of Appeals for the Second Circuit in 1998. She is the first Latina to serve on that court, and has participated in over 3000 panel decisions, authoring roughly 400 published opinions. Sitting on the Second Circuit, Judge Sotomayor has tackled a range of questions: from difficult issues of constitutional law, to complex procedural matters, to lawsuits involving complicated business organizations. In this context, Sotomayor is widely admired as a judge with a sophisticated grasp of legal doctrine. "’She appreciates the complexity of issues,’ said Stephen L. Carter, a Yale professor who teaches some of her opinions in his classes. Confronted with a tough case, Carter said, ‘she doesn’t leap at its throat but reasons to get to the bottom of issues.’"

New York City District Attorney Morgenthau, who hired Sotomayor as an ADA, recently praised Sotomayor as an "able champion of the law" who would be "highly qualified for any position in which wisdom, intelligence, collegiality and good character could be assets." [Wall Street Journal, 5/9/09 via the White House blog]

Sotomayor's path to a Supreme Court nomination is pretty similar to that of Justice Alito, who also went to Princeton and Yale before eventually ending up on the Third Circuit. (Does anyone remember any handwringing from conservatives about whether he was qualified enough for his nomination?) In an interview last week, Rep. Jose Serrano (D-NY) pointed out that out of all of the nominees to the Supreme Court, Sotomayor "brings the most in terms of judicial experience - in terms of serving on a federal court - in 100 years."

Stupid Argument #3 - She's a racist/"reverse racist"

Perpetrators - Rush Limbaugh, Newt Gingrich, Pat Buchanan, and others

Newt Gingrich commented on Twitter: "White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw."

Rush Limbaugh called Sotomayor "a bigot" and "a racist" and later said: "She brings a form of bigotry or racism to the court. I don't care -- we're not supposed to say it, we're supposed to pretend it didn't happen, we're supposed to look at other things, but it's the elephant in the room. The real question here that needs to be asked -- and nobody on our side, from a columnist to a TV commentator to anybody in our party has the guts to ask: How can a president nominate such a candidate? And how can a party get behind such a candidate? That's what would be asked if somebody were foolish enough to nominate David Duke or pick somebody even less offensive."

The Counter - Basically this entire racism argument comes down to one line from one speech given by Sotomayor in 2001 that Limbaugh and friends have taken entirely out of context. Here's the 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." Those who accuse her of racism act as if she was saying that a Latina judge will automatically always make a better decision in every case than a white male judge, but to draw that conclusion you have to ignore the rest of the speech.

Media Matters pulled out some excerpts and concluded that "Sotomayor made the comment in question while discussing the importance of diversity on the bench and the effect of background and personal experiences on judicial decision-making, a point made by such conservatives as Justices Samuel Alito and Clarence Thomas. Those who highlight the one comment miss her broader point, which is amplified in her words immediately following the statement for which she is being criticized. From Sotomayor's 2001 speech:

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.


I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

When you analyze Sotomayor's actual opinions instead of obsessing over one sentence from an eight year old speech, the charge of racism becomes even more ridiculous:

"Tom Goldstein comprehensively analyzed all of her race discrimination cases and found that she ruled against the plaintiff in close to 80% of those cases. Last week, I conveyed my own personal anecdote in which Sotomayor largely ruled against one of the most sympathetic plaintiffs I had in my legal career -- an African-American woman who put herself through nursing school, got injured on the job while trying to help a patient, and was then summarily fired by the hospital for which she worked for 12 years because of her resulting disability. And now, one ofAndrew Sullivan’s readers points to a dissent which Sotomayor wrote in the2002 case of Pappas v. Giuliani, which -- if we have even an iota of rationality left in our media and political discourse -- will, by itself, prevent anyone from claiming with a straight face that Sotomayor disregards the law in order to favor minorities and unfairly oppress white males." [via Salon]

Further Reading:

Tom Goldstein's full piece referenced above, Judge Sotomayor and Race -- Results from the Full Data Set, from SCOTUSBlog

Stupid Argument #4 - She belongs to La Raza, which is like a Latino KKK

Perpetrator - Former Congressman Tom Tancredo (R - Bigotopia)

Tancredo - "...if you belong to an organization, called La Raza in this case, which is, from my point of view anyway, just nothing more than a Latino, it's a countpart, it's a Latino KKK without the hoods or the nooses. If you belong to something like that, you have to explain that in a way that's going to convince me and a lot of people that it's got nothing to do with race, even though the logo for La Raza is 'all for the race, nothing for the rest'." [CNN via Media Matters]

The Counter - Tancredo's claim is simply offensive paranoid nonsense. I guess he's trying to turn La Raza into the new ACORN among ignorant right-wing conspiracy theorists. The National Council of La Raza is "the nation's largest Latino civil rights and advocacy organization". They're involved with issues and programs related to education, immigration, voting rights, community building, health care, employment, and more. They can reasonably be compared to organizations like the NAACP, but in no sane person's mind do they remotely resemble the KKK. And while "la raza" could be literally translated to "the race", it's more realistically translated as "the people" or "the community". And "all for the race, none for the rest" is not the "logo" or slogan of NCLR as Tancredo claimed. He pulled that out of thin air along with the rest of his statements about La Raza.

Check out NCLR President and CEO Janet MurguĂ­a's appearance on CNN to defend La Raza from Tancredo's false claims. (Their website has more on this.)

Further Viewing:

Rachel Maddow tells Tancredo to suck it:

Stupid Argument #5 - She's a bad judge because she has empathy

Beck's is definitely the best and most insightful here: "Hey, Hispanic chick lady! You're empathetic...you're in! That's the way it really works."

The Counter - In this case the fact is that "empathy" is only a problem or a negative attribute when conservatives decide that they want it to be, because there are plenty of past examples to point to of judges being praised by conservatives for their empathy and compassion.

Consider these remarks made by Justice Alito at his confirmation hearing:

U.S. SENATOR TOM COBURN (R-OK): Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up. And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person. [via Salon]

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

Media figures and outlets have focused on the purported controversy over Obama's May 1 statement that 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 claim that, 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 cited Thomas' "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."

Stupid Argument #6 - Her opinions suck and are often reversed by the Supreme Court

Perpetrator - The Washington Times

"With Judge Sonia Sotomayor already facing questions over her 60 percent reversal rate, the Supreme Court could dump another problem into her lap next month if, as many legal analysts predict, the court overturns one of her rulings upholding a race-based employment decision.

Three 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 Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.

"Her high reversal rate alone should be enough for us to pause and take a good look at her record. Frankly, it is the Senates duty to do so," said Wendy Wright, president of Concerned Women for America."

The Counter - Nate Silver of FiveThirtyEight breaks this one down:

"There are two fairly obvious problems with this. Firstly, only five of Sotomayor's opinions have been ruled upon by the Supreme Court. That's hardly enough to reach a statistically sound conclusion. Moreover, as a matter of semantics, most people don't begin quoting percentages until the number of instances is significantly higher than five...But secondly, a 60 percent reversal rate is actually below average based on the Washington Times' criteria. According to MediaMatters.org, the Supreme Court typically reverses about 75 percent of circuit court decisions that it chooses to rule upon.

The reason that the reversal rate is so high, of course, is that the Supreme Court has a lot of discretion about which cases it chooses to review and rule upon, and is generally not going to be inclined to overturn law dictated by a lower court unless the legal reasoning is substantially questionable and has a strong chance of reversal. The better metric would probably be the number of decisions that the Supreme Court overturned out of all of Sotomayor's majority opinions -- whether the Court elected to review them in detail or not. According to the terrific SCOTUSBLOG, "Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases". Even if we do not count the opinions she has authored in criminal, rather than civil, cases, that means the Supreme Court's reversal rate is not 60 percent, but at most 2 percent -- 3 cases out of 150. I have no idea whether that figure is above average, below average, or somewhere in between, but three reversals in more than a decade's worth of jurisprudence strikes this layman as being an extremely solid track record."

Also, as the FiveThirtyEight commenters discuss, the fact that an opinion of Sotomayor's is overturned by the Supreme Court doesn't automatically indicate that her opinion was bad or incorrect. Most SCOTUS decisions aren't unanimous, so even if one of her opinions is overturned by the Supreme Court, that doesn't mean that none of the justices agreed with her, and it's entirely possible that it says just as much about the current makeup of the Court as it does about the quality of Sotomayor's opinions.

Further reading:

Justice Sam Alito on Empathy and Judging from Salon (Update I on this piece focuses on Alito's opinions that were reversed by SCOTUS and the way his reversal rate was treated differently from Sotomayor's)

Stupid Argument #7 - Her name is too hard to pronounce

Perpetrator - Mark Krikorian of The National Review's The Corner blog

No, this isn't a joke. Krikorian is actually annoyed that he's expected to pronounce Sonia Sotomayor's name correctly. In fact, he devoted more than one blog post to the subject.

Here's the first, titled "Assimilated Pronunciation":

"So, are we supposed to use the Spanish pronunciation, so-toe-my-OR, or the natural English pronunciation, SO-tuh-my-er, like Niedermeyer? The president pronounced it both ways, first in Spanish, then after several uses, lapsing into English. Though in the best "Pockiston" tradition, he also rolled his r's in Puerto Rico.

By the way, can anyone point me to the video of the 1990 Saturday Night Live skit with Jimmy Smits where the news staff were doing ridiculously exaggerated pronunciations of "Neek-o-rah-gwa" and the like? I can't find it online or on DVD."

And excerpts from the second, titled "It Sticks In My Craw":

"Most e-mailers were with me on the post on the pronunciation of Judge Sotomayor's name (and a couple griped about the whole Latina/Latino thing — English dropped gender in nouns, what, 1,000 years ago?). But a couple said we should just pronounce it the way the bearer of the name prefers...Deferring to people's own pronunciation of their names should obviously be our first inclination, but there ought to be limits. Putting the emphasis on the final syllable of Sotomayor is unnatural in English (which is why the president stopped doing it after the first time at his press conference), unlike my correspondent's simple preference for a monophthong over a diphthong, and insisting on an unnatural pronunciation is something we shouldn't be giving in to.

...should we put Asian surnames first in English just because that's the way they do it in Asia? When speaking of people in Asia, okay, but not people of Asian origin here, where Mao Tse-tung would properly have been changed to Tse-tung Mao. Likewise with the Mexican practice of including your mother's maiden name as your last name, after your father's surname.

This may seem like carping, but it's not. Part of our success in assimilation has been to leave whole areas of culture up to the individual, so that newcomers have whatever cuisine or religion or so on they want, limiting the demand for conformity to a smaller field than most other places would. But one of the areas where conformity is appropriate is how your new countrymen say your name, since that's not something the rest of us can just ignore, unlike what church you go to or what you eat for lunch. And there are basically two options — the newcomer adapts to us, or we adapt to him. And multiculturalism means there's a lot more of the latter going on than there should be." [The Corner via Wonkette]

The Counter - Is this privilege at its finest or what? How dare that presumptuous brown lady expect me to say her name correctly! It's positively unnatural. It's only basic common courtesy and respect and she's only a highly qualified and accomplished nominee to the highest court in the land, but we don't want you to strain yourself, Mark. And as Washington Monthly points out, it's extremely likely that Krikorian pronounces names like, say, Scalia and Alito without any problem. He does have point about English dropping gender in nouns a thousand years ago - just ask any actress or Congressman.

Further Reading:

Stupid Argument #8 - She's mean and/or too emotional

Perpetrators - Sean Hannity, Karl Rove, The New Republic, anonymous clerks and lawyers, and others

Rove: "There is a certain irony in a president who routinely praises America’s commitment to “the rule of law” but who picks Supreme Court nominees for their readiness to discard the rule of law whenever emotion moves them." He also said that Sotomayor acts like "sort of a schoolmarm" on the Second Circuit.

Hannity: "[W]hat do the lawyers who have appeared in her courtroom think of her judicial temperament? Well, not much. The Almanac of the Federal Judiciary solicits commentary from practicing attorneys about our federal judges. Now here’s what some lawyers who have argued before Judge Sotomayor had to say about her. Quote, She is a terror on the bench. She is overly aggressive, not very judicial. She behaves in an out-of-control manner. She is nasty to lawyers." [via Think Progress]

"But to detractors, Judge Sotomayor’s sharp-tongued and occasionally combative manner — some lawyers have described her as “difficult” and “nasty” — raises questions about her judicial temperament and willingness to listen. Her demeanor on the bench is an issue that conservatives opposed to her nomination see as a potential vulnerability — and one that Mr. Obama carefully considered before selecting her." [Anonymous lawyers via The New York Times]

“I felt she could be very judgmental in the sense that she doesn’t let you finish your argument before she jumps in and starts asking questions,” said Sheema Chaudhry, who appeared before Judge Sotomayor in an asylum case last year. “She’s brilliant and she’s qualified, but I just feel that she can be very, how do you say, temperamental.” [via The New York Times]

The Counter - Oh, those spicy Latina women with their sassy attitudes and over-the-top emotions, right? This is why only white men should be trusted with important jobs like this. The first counter here is just to ask whether anyone would be raising questions of "temperament" and "emotions" if the nominee were a man.

The second is to question some of these sources, especially in the case of the Hannity quote. As Think Progress points out, the Almanac of the Federal Judiciary relies on anonymous comments from lawyers, and of course Hannity picked out only the most negative quotes he could find:

"Had Hannity wanted to present a “fair and balanced” view of Sotomayor’s reputation, he would have noted that lawyers quoted in the edition of the Almanac of the Federal Judiciary from which he drew his statements also had many positive things to say about Sotomayor. Indeed, they said she was “very smart,” “very intelligent,” “an exceptional judge overall,” and that “she has a very good commonsense approach to the law.”

Additionally, as Rob Kar at PrawfsBlawg found, the 2000 edition of the Almanac painted, on balance, a much more positive image of Sotomayor than the more recent edition that Hannity quoted. Indeed, the 2000 edition lacks any description of her being a “terror” or “out-of-control.” Instead, she is described as “not rude in any way, but she’s exacting,” “professional,” and “all business”:

Lawyer’s found Sotomayor to be demanding. “I think she’s fine.” “She can be tough. She’s not rude in any way, but she’s exacting.” “She’s all business.” “I’ve never had any problem with her, but I know some lawyer’s don’t care for her temperament.” “She can be tough as nails, but, in truth, I think some lawyers give her a hard time or are threatened by her. She’s very accomplished and clearly smart, and, in truth, I think they’re intimidated. She has always been decent enough to me.” “She’s professional. She’s not quite as friendly or as approachable as some of the other circuit court judges are. She’s a little more stern.” “She’s very smart and well-prepared, and she expects lawyers to rise to her level. She has very little tolerance for lawyers who can’t match her intellectually.” [Emphasis mine, on the statement that I think pretty much says it all about this particular argument]

Of course Media Matters also weighed in on the myth of Sotomayor's temper:

"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 reportedly characterized 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."

And in the NYT piece, one of Sotomayor's colleagues calls this one out for exactly what it is:

"Judge Guido Calabresi, a former dean of Yale Law School who taught Ms. Sotomayor there and now sits with her on the Second Circuit, said complaints that she had been unduly caustic had no basis. For a time, Judge Calabresi said, he kept track of the questions posed by Judge Sotomayor and other members of the 12-member court. “Her behavior was identical,” he said.

“Some lawyers just don’t like to be questioned by a woman,” Judge Calabresi added. “It was sexist, plain and simple.”

He said Judge Sotomayor’s forceful and lucid arguments had persuaded him to reconsider his position in a number of instances. “And I’m a tough act,” he said."

Further Reading:

Stupid Argument #9 - Her love of Puerto Rican food might impact her decisions on the bench

Perpetrators - Anonymous Republicans via The Hill

"According to Hill reporter Alexander Bolton, "This has prompted some Republicans to muse privately about whether Sotomayor is suggesting that distinctive Puerto Rican cuisine such as patitas de cerdo con garbanzo -- pigs' tongue and ears -- would somehow, in some small way influence her verdicts from the bench."

...Slightly gobsmacked, I called Bolton earlier today and asked him whether this was for real--whether any conservatives were genuinely raising this issue. He confirmed, saying, "a source I spoke to said people were discussing that her [speech] had brought attention...she intimates that what she eats somehow helps her decide cases better."

Bolton said the source was drawing, "a deductive link," between Sotomayor's thoughts on Puerto Rican food and her other statements. And I guess the chain goes something like this: 1). Sotomayor implied that her Latina identity informs her jurisprudence, 2). She also implied that Puerto Rican cuisine is a crucial part of her Latina identity, 3). Ergo, her gastronomical proclivities will be a non-negligible factor for her when she's considering cases before the Supreme Court." [TalkingPointsMemo/TPMDC]

The Counter - Hard to counter something that's so illogical and dumb it doesn't even work as a joke. Is this some super sly way of calling her fat? Even that makes zero sense as an argument against her, especially considering that some of the other Supreme Court justices aren't exactly Olympians themselves. Or is it just some goofy fear and mistrust of weird brown people food? We're going to just go with TPM's conclusion - if this is the best the Sotomayor opposition can do, we're in pretty good shape.

Further Reading:

Stupid Argument #10 - She's a woman so she'll probably make bad decisions when she has PMS

Perpetrator - Conservative radio host G. Gordon Liddy. On the May 28th edition of his radio show, Liddy said, "Let’s hope that the key conferences aren’t when she’s menstruating or something, or just before she’s going to menstruate. That would really be bad. Lord knows what we would get then."

The Counter - Honestly? Pointing and laughing might be best on this one, because anyone clueless enough to say something so ridiculously sexist and idiotic belongs in 1909, not 2009. Or just tell them to suck it. (And the beauty of that is that if the person is offended, you can just say "I'm so sorry, I guess I have PMS today.")

Further Further Reading:


Allison said...

I can't say that I'm wild about her, but just a few points...

1. Most classes in law school use one final, anonymous exam for grading. For everyone.

2. The law journal selection is anonymous and largely based on those anonymous grades from the first year. There is often a writing/editing component to the application process, which is also anonymous. For everyone.

3. Empathy is already built into the law. Some matters of contract law, for example, can be declared "void against public policy" even if the contract process was technically correct. Similarly, several areas of law use "unconscionability" as a standard or justification for some kind of remedy. To say that empathy has no (good) place in the law is to ignore over 200 years of jurisprudence. This is not to say that empathy overrules anything else - it does not. But it certainly has its proper place.

Bill said...

Wow. Incredible post. Now I easily rebut some of the stupid arguments some family/friends have been spouting out about this.

It's pretty telling that so many different excuses are coming from the same people, but that only a few make it into public consciousness. It's just throwing a bunch of crap out there to see what sticks. I'm really saddened by the state of public discourse in this country... at least there are some people out there willing to intelligently research and discuss politics. Thanks.

Anonymous said...

Some of these are very legit, but one glaring point is that while perhaps not everybody uses the term "has empathy" as code for a liberal activist, Obama himself did that when he explained that one primary reason he voted against both of Bush's nominees to the Supreme Court--Roberts and Alito--was that they "lacked sufficient empathy"--well we can see that at least in Alito's case, that is nowhere near the truth with a statements such as he made that normally would have many conservatives screaming. So how do you reconcile Obama himself using the "empathy" card to disguise ideological beefs.