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.