Monthly Archives: May 2009

Via James Tyre, a pointer to this interesting BNA-provided tidbit: TechLaw: Judge Sotomayor Is First Nominee With Cyberlaw Record. In fact, she's participated in quite a lot of tech-related cases.

Specht is a good decision. It's both conservative and liberal: it's conservative in the sense that it followed precedent (I think it would have been unremarkable 10 years earlier) but liberal in the sense that it resisted, and may have helped stop, an incipient trend to push contract notice law in a more anti-consumer direction.

The battle lines are drawn. Democrats will start by noting that in 2005 Republicans claimed filibustering Judicial Nominees was the most hideous form of political subversion. Up or down vote was the mantra. And it's all on tape at DemocracyOrHypocrisy.org.

The White House is going to take the high road, noting over and over again that no Supreme Court justice in a hundred years has had this much prior experience on the federal bench — without worrying about what this might mean for any future nominee who wasn't a judge.

To those on the right who try to attack Sotomayor's credentials, the White House will not play the racism card, but rather let the record speak for itself,

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.

According to a “senior White House source” President Obama narrowed the choice to four finalists before choosing Sotomayor. So far, the RNC message in response seems flat-footed. Compare the White House Press Office Backgrounder on SotoMayor with RNC Sotomayor talking points – the latter is pretty thin gruel. That may be due to the White House's tactical timing of the nomination

Will the RNC anti-“empathy” drumbeat tried out last week work? I rather doubt it. There's more of an opportunity to whip up the base with Sotomayor's taken-out-of-context quote about how she hopes that a Latina judge might make better decisions about some issues than white male judges. Because I think this will be the main line of attack on Sotomayor, it's worth quoting the context in some detail,

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 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. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation. For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach. For all of us, how do change the facts that in every task force study of gender and race bias in the courts, women and people of color, lawyers and judges alike, report in significantly higher percentages than white men that their gender and race has shaped their careers, from hiring, retention to promotion and that a statistically significant number of women and minority lawyers and judges, both alike, have experienced bias in the courtroom?

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. 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.

Works for me.

But combined with Sotomayor's decision in the New Haven firefighter's case, expect more stuff like this, “She reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety.” (White House response: She was following circuit precedent — how can anyone attack her as an activist judge and attack her for following circuit precedent?)

PS. How times have changed dept: If Sotomayor is confirmed, six of the nine Justices will be Catholics. Will anyone care? (I was surprised to learn that Roger B. Taney, appointed Chief Justice in 1836, was the first Roman Catholic Justice.)

The best analysis I've seen so far of the politics of the Sotomayor nomination is SCOTUSblog, The Dynamic of the Nomination of Sonia Sotomayor.

I don't agree with every word, but the key points seem right:

• Obama has the votes for this;
• That won't stop the interest groups from going berserk, because that's what they do and they get rich off it;
• Key Republicans will take a dive because the costs of opposition are too great;
• The Republicans, and the interest groups, will exact payback on the next one.