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Darn, I wanted another wealthy hetereosexual caucasian male on the bench.


And I'd like someone who is judicious, fair and follows our Constitution and our laws. Period.

Unlike some others, I haven't a whit of racism in me.


Peg you wrote,

"And I'd like someone who is judicious, fair and follows our Constitution and our laws. Period. Unlike some others, I haven't a whit of racism in me."

So I am curious as to what have you seen or read that would you lead you to believe that she would not be fair or follow the Constitution?


Serious, Greg? Haven't you seen the video where she asserts that the courts make policy??! That absolutely is not following our Constitution.

In addition, our courts should be colorblind and blind to class. She has made statements - empathy, anyone? - that make it sound she would not follow that stricture. Look at the current case of the firefighter who passed with flying colors - but was denied his advancement because no black candidates passed the test. Sotomayer was even reprimanded about it by a judge appointed by WJC!


Serious Peg, have you really read what she said and what she has done, or did you only get the abridged version? Let's take a few of the points you brought up.

Haven't you seen the video where she asserts that the courts make policy??!

There are some justices on the Supreme Court have said the same thing and then backed it into their judicial decisions. A Supreme Court Justice I would assume you have no issue with such as Antonin Scalia, in the majority opinion of 2002 case Republican Party of Minnesota v. White, wrote:

"This complete separation of the judiciary from the enterprise of "representative government" might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well." See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999). Which is precisely why the election of state judges became popular.

In a footnote Scalia went on to elaborated:

"In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed. "

You also bring up the point of

"In addition, our courts should be colorblind and blind to class. She has made statements - empathy, anyone?"

I would guess you were against Sam Alito when he spoke of empathy and being a judge. Anyone who is objecting now to Sotomayor's alleged "empathy" problem but who supported Sam Alito and never objected to this sort of thing ought to have their motives questioned.

Samuel Alito's Decisions Guided By Ethnicity, Empathy

And finally let us put to rest the quote that the conservatives have been up and arms about, and who have clearly cherry picked and taken out of context.

Sotomayor speech in 2001 at Berkeley

"In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice 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 Cardozo voted on cases which uphold both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender in a 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."

This is the reason why I wanted her picked. I knew if Obama choose her, we would see this double standard hypocrisy coming from the Right. In fact I predicted it a while back on this blog. So in essence what people on the Right are saying, you can work hard, excel in school, have more experience than anyone else in your field in at least the last 75 years, and that is still not good enough. You can disagree with her views, but this notion that she is any different than those that you have supported or that this is criticism is based in facts is a joke. If I was Hispanic I would put all these things in my head next time I faced the choice of whether or not to vote Republican.


Strange. I followed the links to the Scalia quote - and could not find it in the document. Not sure what I'm doing wrong - or if the wrong document was offered.

In any case - I did watch the Alioto video. Do not get me wrong; I think that there is nothing wrong with any judge considering a person's background, experiences, knowledge, etc. when making decisions. Neither judges nor those who come before a court are automatons. Everything has context.

Yet, that is different than overriding law because of an emotion like empathy. Alioto did not express the same view that Sotomayer did.

And, you mentioned nothing about Sotomayer's decision about the firefighters; one that I find is based upon giving preferences to certain races over others.

In any case; this is all moot. Sotomayer (barring something that no one now knows) will be confirmed and will become a Supreme Court Justice. Period.


If you are uneasy about Sotomayer and race, thee easy answer would be to look into what she did, and her record on these types of cases. I was lazy, but here is a good link on it below. It also should be noted that she was not alone in the ruling of the firefighter case. She was one of 3 judges who saw the case the same way. So much for this fake smoke cloud.

Judge Sotomayor and Race

It seems to me that there is an infinitely simpler and more accurate way of figuring out whether Judge Sotomayor decides cases involving race fairly and dispassionately - read her decisions. So I did: I am in the midst of reviewing every single race-related case on which she sat on the Second Circuit.

There are roughly 100. They cover the gamut from employment discrimination to racial bias in jury selection. I decided that I would stop and write an interim report once I got through her 50 most recent race-related cases other than Ricci because the numbers are sufficiently striking and decisive. Here is what I found.

In those 50 cases, the panel accepted the claim of race discrimination only three times. In all three cases, the panel was unanimous; in all three, it included a Republican appointee. In roughly 45, the claim was rejected. (Two were procedural dispositions.)

On the other hand, she twice was on panels reversing district court decisions agreeing with race-related claims - i.e., reversing a finding of impermissible race-based decisions. Both were criminal cases involving jury selection.

In the 50 cases, the panel was unanimous in every one. There was a Republican appointee in 38, and these panels were all obviously unanimous as well. Thus, in the roughly 45 panel opinions rejecting claims of discrimination, Judge Sotomayor never dissented.

It seems to me that these numbers decisively disprove the claim that she decides cases with any sort of racial bias.

I also looked at whether there was anything nefarious in the failure of the Ricci panel to publish a substantial opinion. From the pool of 50, the panel affirmed a district court’s decision rejecting a claim of employment discrimination or retaliation (as in Ricci) 28 times; it did so by unpublished order in 24. Whatever one thinks of the argument that the issues in Ricci deserved more attention than the panel gave them, the decision not to publish an opinion seems to have been pretty commonplace.


This NYTimes article seems to have a different perspective from yours, Greg:


In one of the few cases dealing with the subject that she helped decide on the federal appeals court, Ricci v. New Haven, she ruled in favor of the city’s ’s decision to discard the results of an exam to select firefighters for promotion because too few minority firefighters scored high enough to advance.


First of all that is not my perspective, the link I provided comes from a blog that deals solely on the Supreme Court Cases and issues dealing with the Supreme Court.

Secondly, Judge Sotomayor was not alone in ruling that you seem to object to. She was 1 of 3 judges who ruled in favor of New Haven. Did you read the link, or even what I highlighted, or do the facts matter? I would think before you would try and label someone bias, you would at least look at the facts before you would make your conclusion.

Here is the final report looking at the cases she has been involved with.

Judge Sotomayor and Race — Results from the Full Data Set

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She particulated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

So despite these facts are you still going with this notion that she cannot rule fairly despite the facts bare you wrong in this assessment? Again this is why I wanted her nominated, because I knew those on the Right would do their best to alienate and further drive Hispanics away from the GOP.


Greg, I understand that logic challenges you. So - I will try to spell out more clearly some of the issues you raise.

1) I know the link is a different perspective than what you were saying. Hello; that is why I provided it. No one on earth would accuse the NY Times of being conservative. Yet, they judged to print an article with this perspective.

2) Do you know the races of the individuals in all these cases? Perhaps the judge was ruling against white folks for discrimination - as she did in the Ricci case. Before you get hysterical, let me say that I DO NOT KNOW myself. I'm not labeling her overall. I am talking about specific cases that are troubling.

3) That other judges may agree with Sotomayer does not mean that she (and the others) are correct. Plain and simple. If a majority votes for something, that does not, by definition, make it right. If Republicans vote for something, it does not follow that it is right.

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