Predictably, the right are going insane over her nomination. Since they seem determined to make their stand on the hill marked "Obstructionism", that shouldn't be too surprising. What is surprising is that their attacks on Justice Sotomayor are so, well, weak. They're not even serious attacks, just the pained howls of a political party rapidly fading into insignificance. Still, as we don't have anything better to do (well, I don't and since you're reading this, nor do you), let's knock them down:
- She's a judicial activist! The right has thrown this charge at every single judge who made a decision they disagree with for the last thirty years. First off, there is no such thing as a judicial activist. All judges make law from the bench. In fact, it's impossible to avoid. Due to the operation of stare decisis, a judicial decision once made becomes binding law on all lower courts. An interpretation of the law by one judge becomes binding on all judges in lower courts unless and until it is overruled. That's how precedent works. It is, in a very real sense, the bedrock of our legal system and it means that judges can't avoid making law from the bench.
Secondly, this seems to be based on one remark Justice Sotomayor made in a speech a couple of years ago. The remark was, paraphrased, that "appellate courts make policy". Sounds damning, right? Except that in context, she was talking about the simple fact that a decision makes policy with regard to how that point of law is interpreted in future i.e. she is talking not about anything sinister but about the operation of precedent (outlined above).
- She has a 60% reversal rate! True but really, really misleading. In order to arrive at that statistic, you have to narrow the roughly 380 decisions Justice Sotomayor has made or signed on to down to only those five which have been ruled on by the Supreme Court (there is one other still pending). Of the five which have been reviewed by the Supreme Court, three have been reversed which is where the right is getting this 60% talking point.
However, that is, as said, really misleading. The Supreme Court doesn't review cases routinely, they choose their own cases through a process called certiorari. Essentially, what happens is that the Supremes look down a list of cases which have petitioned for certiorari until they find one which they think is interesting or decided wrongly and then choose to hear that case. The result is that the Supreme Court has an average reversal rate of about 75%. The SCOTUS reverses about three-quarters of the cases that come before it. On those grounds, Justice Sotomayor is batting above the average. Further, Justice Alito had an even higher reversal rate. On the hundreds of opinions that he authored or concurred with, two were taken up by the SCOTUS and both were reversed. So, if we want to phrase things that way, Justice Alito has a reversal rate of 100%.
- She's a reverse racist! There is no such thing as reverse racism. It's still just plain old racism, even if it's directed at white people. Further, the charge of "reverse racism" has now become a convenient excuse for white people to actually be racist.
Now, this seems to come from a concurring opinion she gave to the controversial New Haven 20 case. The case, in brief, concerned an exam (pertaining to promotion prospects) given to some firefighters which was thrown out by the city when no black firefighters passed. Justice Sotomayor joined with the majority refusing to hear the case (thereby upholding the opinion of a lower court which said the city had the right to do so). So, she's a reverse racist who believes in quotas, right? Wrong. See, there are several reasons a court can decline to hear a case. One is that they think the lower court decided the case correctly. Another, often used on the Appellate Court with highly controversial cases, is to fast-track the case to the SCOTUS, thus saving everyone the time and cost of arguing the case in full. Guess which this case comes under? You guessed it.
Here's an excerpt (Katzman, writing for the majority):
"The Supreme Court now has before it a petition for certiorari in this case, which I recognize presents difficult issues. As the Supreme Court decides whether to grant certiorari, it has for it's review the district court's opinion, the panel's per curiam opinion and opinions concurring with and dissenting from the decision denying rehearing en banc. The issues are therefore sharply defined for the Supreme Court's consideration of whether to grant certiorari".Translation for those who don't speak legalese: "This case is maddeningly complex, it's going to get appealed anyway, all the evidence and opinions are there so SCOTUS, it's all yours". The decision was a procedural move to fast-track the case to the Supreme Court.
- She's not bright enough! Here's a partial list of those who disagree: Poppy Bush, Bill Clinton, Orrin Hatch, six other Republicans on the Judicial Committee (all still serving), Lehman College, Princeton University, Brooklyn Law School, Pace University School of Law, Hofstra University, Northeastern University, Columbia Law School, New York University School of Law and the ABA. Oddly, she was also elected a member of the American Philosophical Society. Also, Harriet Miers.
- She's an affirmative action pick! This has now become a rallying cry for actual racism. Anytime someone of an ethnic minority is chosen for a high-profile position, the cry goes up that they are an affirmative action pick. It has now become simply a label to excus racism and therefore, I'll be devoting no further time to it.
- She's empathetic! And? Since when is empathy a bad thing? Being empathetic doesn't mean disregarding the principles of law, it simply means understanding the position of those before a court of law. Think that's bad? Poppy Bush said exactly the same thing of Clarence Thomas when he was nominated.
- She's nasty and a bully! Call a wahbulance. First off, how can she be bother empathetic and a bully? Secondly, so what? No one included "sunny disposition" on the list of qualifications. So a few of her colleagues can be fond to say she's unpleasant. I'm sure a few of my colleagues could be found to say the same thing. In life, not everybody is going to like you. Most of us learn that lesson on our first day of school but apparently, it's needs to be reiterated. Thirdly, compared to Scalia?
Justice Sotomayor's record says she is extremely bright; committed to the principles of law and that far from a "judicial activist", she is a left-leaning moderate. She's good enough, she's smart enough and, doggone it, people like her. Of course, since the right is determined to sabotage every single thing Obama is trying to do, they are going to raise a hue and cry over this nomination. They may even try for a filibuster (Republicans filibuster nearly everything when they're in the minority but threatened the "nuclear option" of eliminating the filibuster entirely when they were in the majority and the Democrats filibustered far less). Hopefully, they'll lose because justice Sotomayor is exactly the kind of Justice you want on the Supreme Court and it would be a tremendous loss to the law if she were another victim sacrificed on the pyre of conservative obstructionism.