Larison on Sotomayor

Daniel Larison has put together some excellent thoughts on the current leading objections to Sonia Sotomayor’s nomination to the SCOTUS.  I have my differences with Larison’s preferred jurisprudence, but he does a far better job than most explaining why the current primary objections to Sotomayor make exceedingly little sense from a conservative standpoint. 

Larison’s explanation that the opinion in Ricci is better explained by the messy state of existing employment discrimination law than by judicial activism is pretty much exactly correct.  As he further notes, in Ricci the plaintiff was an abnormally sympathetic individual fighting against a powerful government entity – if “empathy” were guiding Judge Sotomayor’s decisionmaking more than precedent and objectivity, then she would have sided differently.   Indeed, the opinion in Ricci is remarkable only for its brevity – one paragraph simply stating that the Court agreed with the opinion of the district court and that the City was exempt from suit because to hold otherwise would mean that the City would have been liable no matter what it did in the case.   This is not the type of decision you would expect out of a judge seeking to make policy with her opinions.   

Frankly, reading the district court’s decision in Ricci, it’s tough for me to see how a lower or appellate court could have reached a different conclusion.  It was essentially uncontested that the test at issue was indisputably in violation of existing employment discrimination law.  The result of this violative test was that the plaintiff would have been eligible for promotion.  Realistically, it should be beyond dispute that a government entity has to be able to correct its own violations of the law; it probably should also be beyond dispute that one who would otherwise benefit from that violation of the law (however inadvertently, and however sympathetic they may be) is not entitled to that benefit, at least not until they have actually received it.   Short of overturning or weakening settled aspects of Title VII (which the SCOTUS may well choose to do), it’s difficult to see how the district court or the appellate court could have reached a different conclusion in this case.

Larison’s strongest paragraph, though, is with respect to the brouhaha over Sotomayor’s statement that she “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.”  Larison writes:

Suppose for a moment that a conservative Catholic man in a similar position said that he hoped that the richness of his religious tradition would inform and shape his judgments that would more often than not help him to make better judgments than someone without that background. Such a person might reasonably and legitimately claim this. No doubt there would be a comparable freak-out in certain circles on the left that theocracy was on the march, while conservatives would declare it outrageous (indeed, the imposition of a religious test!) that anyone would object to a statement about the importance of the man’s faith to his formation and thinking. She is not asserting that Latinas are naturally superior judges, nor is she even saying that they are necessarily better on account of their experiences, but that she hopes that they would be. One might almost think that her recognition that impartiality is something to be pursued, but that it is never fully achievable, would be considered a refreshingly honest admission that judges have biases and are shaped by their past experiences.

This sounds exactly right to me. 

Ultimately, the fact is that we don’t know a heck of a lot about where Judge Sotomayor stands on various hot-button issues despite the fact that she’s been an appellate judge for quite some time.   To me, this may actually be one of her best qualifications – this does not appear to be someone who has a reputation for fiery polemic or attention-seeking, but is instead someone who pretty clearly seems to have a calm and measured temperament. 

To be sure, my very initial readings on Judge Sotomayor’s decisions raise a few question marks – just not on issues that are likely to enrage modern movement conservatives even as they don’t appear to be libertarian-friendly.  By and large, though, I have yet to see an objection to her that has a lot of validity to it.  This isn’t to say that there aren’t any – just that they haven’t been made yet.

UPDATE: Larison has a follow-up post that is equally well worth a read.

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13 thoughts on “Larison on Sotomayor

  1. Mark –

    On a related note, I seem to remember that Souter was pilloried by conservatives because his jurisprudence was firmly rooted in respect for stare decisis, which generally ignores reading your preferred political outcomes into the law in favor of a more precedent-oriented approach. Do you think that’s a fair characterization of his judicial philosophy?

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  2. If he’s going to flip what she said, flip it correctly — ““ I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion [as a judge] than a latino woman who hasn’t lived that life.” It makes a difference when it is said like this, because it clearly shows she values life experiences more, to qualify as a judge, than legal experience and wisdom in general. And it shows that she thinks the white male experience is inferior to the latino female experience. Given that experiences are varied individually, this is a troublesome statement reflecting a limited ability to think deeply. It’s a simple mindset stuck in multi-culturalism 101. This mindset is not appropriate to a judge on the Supreme Court who shouldn’t be that philosophically limited.

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  3. I don’t know whether Souter was particularly singled out for relying on stare decisis, but such a criticism is pretty incoherent – any judge in a common law system is going to rely pretty heavily on stare decisis.

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  4. Mike,

    I’m with about 50% of the way and disagree with the other half.

    I agree that Daniel has improperly flipped the script and you have righted the quotation by correctly reversing it.

    I don’t think it’s as simple as Multiculturalism 101 and totally stupid. I think it’s by itself a very limited view but like every stereotype is based in some (even very limited) truth.

    What I think Soto. is saying is that the Latina woman has an outsider’s view. Outside of the dominant culture (here described as white male).

    1. She hopes it would give better decisions which means she realizes it won’t always.

    2. (And here I do agree with Daniel) It admits that are gender/ethnicity comes into play. What multiculturalism–which is a word I don’t like–does do is point out the ways in which white people have a culture and often don’t realize it. Think of the US Prez debate: “the real Americans, the hard-working Americans.” The white Americans.

    Or referring to churches and “black churches”. Or your black friend for that matter.

    3. It’s not taking account of poorer whites. So you could accuse Sotomayor or being classist.

    4. It flips the typical hierarchy (deconstructs) and replaces it with a new hierarchy. That’s new hierarchy is still a hierarchy (Latina women=good, white man=bad) and that’s where it’s problematic.

    But if it’s Ann Coulter or Rush Limbaugh yelling about reverse racism on this one I can’t say as I can get too upset–given that the other side (#2) isn’t being acknowledged by individuals like that.

    In my dream world, we would move beyond both the mono-culturalism and the multi-culturalism, both of which are still far too static and essentialist and treat culture as if it’s this all defining reality.

    The Conservative Judiciary is dominated by the former. The Liberal Judicial Establishment by the latter. It would be nice to move beyond both of those failed ideologies. I just don’t see it happening anytime soon.

    Somebody like Jack Balkin’s Constitutional Originalism (or Randy Barnett’s work) is starting in that 3rd direction.

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  5. Chris,

    I don’t think she is totally stupid, or what she said is totally stupid, just limited regarding the requirements for a Supreme Court judge — most of us are limited in this respect. She might have a deeper understanding of some aspects of the world, but this is irrelevant, and it’s individually possessed, if so, not inherent in being a latino woman.

    Justice is blind — this is not a cliche, it’s a principle, and where she might have insight into the life of a latino woman, this can’t be exprapolated to a superior understanding of the law in comparison to what a white male would possess, or a black male, or black woman, or asian male, etc. What in the experience of a latino woman makes that experience more valuable than a white male’s experience? It’s a combination of experience and knowledge and individual capacity to understand and possess the qualities necessary to interpret the law and perform the duties of a Supreme Court judge that’s critical — all the other considerations are political and cynical, and dangerously counter to the Constitution.

    I don’t see any way around this, unless we change the qualifications for being a Supreme Court judge — however, going by the qualifications, Sotomayor is a poor choice, given there are many others more suited and less limited. We should stop the trend to stack the court for political reasons.

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  6. I think it’s just silly to hang on to every last comment someone has made. People phrase things poorly. They say things with meaning that is lost when quotations are taken out of context, or even out of a larger context that goes beyond the particular speech etc. as in the theme of the event. It is okay for a woman and a minority to talk about the inherent struggle that women and minorities face. It’s okay that those struggles help them form their perspective – or in Sotomayor’s case, help her be a better judge.

    Do I think it makes her a better judge than a white male? No. I think it’s irrelevant. I even think it’s a dumb thing to say – or a dumb way to say it perhaps. Do I think it holds any water as a piece of the case against her nomination? No. She seems perfectly qualified. I could care less about these silly trifles.

    If he’s going to flip what she said, flip it correctly — ““ I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion [as a judge] than a latino woman who hasn’t lived that life.”

    Also, it is not fair to flip the statement the way Mike has offered. The point of her statement was that she was specifically something that made her different (not superior or inferior, but different, with different struggles). Having a strong Catholic faith would be similar to that (not the same, but similar). Being a non-minority (white male) is not – unless you are gay or something that takes you out of the mainstream. Is this always a valid point? Often no. But in her case it does seem to be – more because of class than race, I’d say, but still…. Her point is not to place one race above another, but to show that her experience due to race and sex was different. That is why Larison uses the strong faith example, rather than simply using Sotomayor’s physical opposites.

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  7. Before attacking someone for what they said, you should look at what they said:

    “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.”

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  8. I’d also point out that Sotomayor is very qualified – well educated with lots of experience at the bench. Are there more qualified potential nominees? Of course. There almost always will be. And the court is always stacked for political reasons and always will be, though obviously it would be best if presidents would pick great legal thinkers who could look at things beyond their ideological merit….

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  9. It’s not only this statement, but the taped talk where she talked about judges making policy — then the firefighter decision — all of it together gives us a view of the person. She is not suited to be a Supreme Court judge, in my estimation. It doesn’t make her a bad person, just not qualified.

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  10. “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.”

    This statement offends me.

    Oddly enough, the statement “I am confident that a wise Latina woman with the richness of her experiences would reach equally wise (though not necessarily identical) conclusions as a white male who hasn’t lived that life.” sets off not a single klaxon.

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