Faith & Social Justice: In the spirit of Richard Overton and the 17th C. Levellers

Refuting Conservative Talking Points on Sotomayor

There may be REAL concerns for both conservatives and liberals about the nomination of Judge Sotomayor for SCOTUS.  I have questions and I’d be surprised if there was anyone who didn’t.  That’s why we have confirmation hearings.  But the rightwing noise machine (otherwise known as 2/3 of the mainstream media) is already throwing up numerous stupid talking points against her. Conservatives as well as liberals should quickly want to shut these up–because they will prevent discussion of real issues and could lead to such a backlash against opposition to Sotomayor that no real discussion of real issues happens.

  • Sotomayor is “not intelligent.”  This has been said by numerous talking heads, but the funniest version is by Karl Rove, the Bush campaign manager.  First, Rove never graduated from ANY college–something even AK Gov. Sarah Palin managed after transferring repeatedly.  Look it up. Rove has a high school education.  By contrast, Judge Sotomayor, who grew up in poverty in the Bronx, graduated from Cardinal Spellman High School as valedictorian in 1972.  She was on the school forensics (debate) team and school government.  She won an academic scholarship to Princeton University (one of the finest U.S. universities) where she graduated summa cum laude (with highest honors) and Phi Beta Kappa. She graduated Princeton SECOND in her entire class.  She then went to Yale University Law School (consistently rated the top law school in the nation by U.S. News and World Report) where she edited the Yale Law Review, again, something that only the top academic achievers get.  Rove says, “I know many stupid people who went to Ivy League schools.”  Well, he knows George W. Bush who got into Yale and then Harvard Business School (MBA) because of who his father was and then partied and made “Cs.” That doesn’t compare AT ALL to Sotomayor.  Attacking her intelligence is, frankly, stupid.
  • “The food she likes  (traditional Puerto Rican) could influence her judgments.”  Seriously? Her FOOD?
  • “She’s a reverse racist!”  This takes a speech out of context where she describes the way her ethnicityand gender naturally color her outlook.  But the full quote  shows that she CAUTIONS AGAINST being unduly influenced by her life story.  Life story and diverse perspective were cited as POSITIVES by Republicans when speaking about Justice Clarence Thomas’ blackness and childhood poverty and about Justice Alito’s childhood poverty and remembrance of the descrimination his ancestors faced as immigrants and Catholic.  When Alberto Gonzalez was up for Atty. General (and turned out to be one of the worst ever), conservatives specifically labelled any questioning of his qualifications or views as anti-Latino racism.  So this “reverse racist” label they are trying to hang on Sotomayor is going to backfire badly. (Update:  Former Rep. Tom Tancredo (R-CO), the racist and xenophobic former candidate for president whose anti-immigrant rhetoric helped move Colorado out of Republican hands, is claiming that Judge Sotomayor is racist because she belongs to  La Raza, a Latino civil rights organization which Tancredo compares to the KKK!  In fact, La Raza, the largest national Latino civil rights and advocacy organization, is more like the NAACP.  Ask any Latino–La Raza is FAR from radical. It’s tame and only xenophobes like Tancredo who project their own racism on others would think otherwise.  How far is La Raza NOT a “Latino KKK?” Both Bush and Rove spoke to it before–back when the GOP was trying to win Latinos rather than alienate them.  Of course, John McCain was keynote speaker for ACORN one year before trying to make them public enemy number one during last year’s presidential campaign, so consistency is rare in politics!) 
  • “She’s hot tempered and a bully on the court.”  This rumor came from anonymous sources that Jeff Rosen of The New Republic claimed were from colleagues, clerks, etc.  It has been widely debunked and Rosen has backtracked. (Update: I had pushed “publish” instead of draft. I meant to include K. Gray’s claim that “negative assessments of her demeanor” are also entered in an official registry of judges, but I hadn’t had a chance to look that up. It still strikes me as a stupid talking points for the reasons that follow.) But let’s suppose it is true.  It is well known that Justice Scalia is a hot-tempered bully and no one claims that disqualifies him as a SCOTUS justice.  This is sexist stereotyping.  A man stands up for himself or argues forcefully for a viewpoint and is called “assertive.” A woman does the same thing and is called “aggressive,” “a pushy broad,” etc.  We are not deciding a personality contest here.
  • “She’s been reversed by the Supreme Court 60% of the time!” Umm, actually, as the SCOTUS justices themselves say, that’s an excellent record.  When Justice Alito was an appellate court judge, he was reversed by the SCOTUS 100% of the time! Judge Sotomayor has been the primary author of 380 decisions as a 2nd Circuit Court of Appeals judge. 6 of them were appealed further to the SCOTUS.  2 of those decisions were reversed in full and a 3rd in part.  The average reversal rate is 75%, so Judge Sotomayor is ahead of the curve.
  • “She said that appellate judges make policy!” At a Dule Law School conference, Judge Sotomayor did say that,whether they want to or not, judges make policy where the law is not clear.  She was telling law students that the reason advocacy groups look for lawyers who have clerked with appeals court judges is because the appellate courts deal with broader issues of the law and, by their nature, make policy.  Is this controversial?  Maybe, but most would say that judges have made policy ever since in Marbury v. Madison the Supreme Court of the U.S. claimed the power of judicial review.  In fact, the two most conservative justices on the current SCOTUS, Antonin Scalia and Samuel Alito have made similar statements. Read them here.  Judge Sotomayor is clearly no judicial activist. Her most controversial ruling (about whether CT white firefighters were victims of reverse racism) actually shows an unwillingness to second guess CT’s legislators.  Nor is she some far left liberal.  A close examination of her record finds her to be VERY SIMILAR to Justice Souter whom she is replacing.
  • “Her name is too hard to pronounce!” This has been said by Mark Kirkorian!! Seriously, you want to go after Judge Sonia Sotomayor’s NAME??  (Similarly, Mike Huckabee (R-AR), the former AR Gov. turned Fox News host, called her “MARIA Sotomayor.” Right–because the only Puerto Ricans he knows are in West Side Story, right?)

C’mon, folks! Let’s quit this bozo stuff.  We should be asking REAL questions of Judge Sotomayor.  The following are a few:

  • On abortion (Yes, I brought it up):  Both pro-choice and pro-life groups seem to assume that Judge Sotomayor is pro-choice, but is this assumption justified?  She has only ruled on two abortion-related cases, but in both ruled in ways that pro-lifers should like better than pro-choicers.  In one case, she ruled that the Bush administration’s ban on federal money to international aid groups that fund abortions was constitutional, saying that the government had just as much right to favor pro-life positions as to favor pro-choice positions.  In the other case, she ruled against using racketeering laws to prevent anti-abortion groups from protesting outside abortion clinics.  Now, I think that both those rulings are reasonable, no matter what one’s view of abortion is.  But I think it would be fair for both pro-life and pro-choice folks to ask Judge Sotomayor to clarify her views.
  • On criminal law:  Judge Sotomayor has been a tough prosecutor and a tough trial judge. Her rulings as first a federal district judge and then a circuit appellate judge show a toughmindedness on crime.  In light of the way that the rights of defendants have been narrowed by the courts in recent decades, I’d like to know that Judge Sotomayor is strong on the rights of defendants.
  • On corporations versus individuals and the environment: Judge Sotomayor has been a litigator for international corporations working in the U.S.  Liberal columnist E.J. Dionne (in a column largely supportive of Sotomayor) thinks some of her rulings “will make Chambers of Commerce very happy.”  So, I’d like to know her views on labor law, on the liabilities of corporations, on corporate responsibility to communities and the environment, etc.
  • Church and state:  I want to know if Judge Sotomayor believes in the recent high court view that separation is not strict (no Lemon test) but must accomodate religion dominating the public square or (my view and the traditional Baptist one) must separation be strict?  On free exercise, does she support the older (better, in my view) that  the burden of proof must be on any law that would restrict religious free exercise? Or, does she go with the newfangled (bad) view that any law which is “facially neutral” to religion can still have the effect of restricting free exercise (usually of minority religions) and be legal?  Justice Souter was a great friend of religious liberty and church-state separation and I’d hope his successor will be at least as strong.
  • Executive power:  The Bush administration made far reaching claims of executive power that seemed to diminish the authority of the other two branches of government.  This has not fully snapped back into balance under Obama.  I’d hope Judge Sotomayor would want to restore our checks and balances between 3 separate and equal branches of government.
  • I want to ask whether judge Sotomayor believes indefinite detention without trial is legal.  What her view of “waterboarding” is and whether those who commit war crimes should be prosecuted–no matter what position they held in government.

There are many other real issues.  They’re quickly getting lost in these stupid attacks.

May 28, 2009 - Posted by | Uncategorized


  1. ‘”She’s hot tempered and a bully on the court.” This rumor came from anonymous sources that Jeff Rosen of The New Republic claimed were from colleagues, clerks, etc. ‘

    Outside the liberal blogosphere, this is not a Jeff Rosen rumor, as you know.

    OTOH, there are testimonies (one on Fox!) that she is warm, engaging and personable.

    Don’t be afraid of the evidence. She’ll be confirmed unless something truly wacky shows up. And we’ll figure out her views is in a few years, rather than through confirmation hearings.

    Comment by K Gray | May 28, 2009

  2. I’m not afraid of the evidence, K. I think it is a stupid talking point. I’d also like to apologize for the typos, etc. in this posting. I had not planned to publish it, yet, but hit “publish,” instead of “draft.” Oops! 🙂

    Comment by Michael Westmoreland-White | May 29, 2009

  3. She should be questioned about her legal opinions and philosophy. These are legitimate questions that deserve answers before the senate committee. The fact that she is a woman or a Puerto Rican doesn’t concern me one way or the other. And she can eat what she pleases. I think that the senators should definitely address the New Haven (firemen) case and call firemen as witnesses too.

    Comment by Paul | May 29, 2009

  4. Well, since that case is currently before SCOTUS, she might refuse to talk about it and would certainly have to recuse herself. But it shows judicial restraint–she was unwilling to second guess the CT legislators.

    Comment by Michael Westmoreland-White | May 29, 2009

  5. But does the state have a right to discriminate? Weren’t you criticizing Goldwater for believing that way a couple of weeks ago?

    BTW, addressing your question about crime, the AP has a new article: Sotomayor’s record reveals she’s far from soft on crime: http://news.yahoo.com/s/mcclatchy/20090529/pl_mcclatchy/3242335_1

    She apparently has approved of warrantless searches.

    Comment by James Pate | May 29, 2009

  6. The question is whether or not the CT affirmative action program did or did not constitute “reverse racism.”

    And I find Judge Sotomayor’s views on crime somewhat troubling. That’s why I want the stupid attacks stopped so we can examine real issues like this. This SHOULD be part of the Senate Judiciary’s review.

    Comment by Michael Westmoreland-White | May 29, 2009

  7. Sure, Sotomayor doesn’t think she’s allowing racial discrimination. The South argued that it wasn’t either, thus the phrase “separate but equal.” But, in both cases, the state is making distinctions based on race.

    Comment by James Pate | May 29, 2009

  8. Going beyond talking points to facts – this info came directly from Sotomayor’s 2001 “Latina Judge’s Voice” speech at UC Berkely Law:

    “…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 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….”

    On gender equality, she also said: “…Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases.” She goes on to urge how women and minorities will alter the reason-of-law.

    So, Sotomayer rejected gender equality from the bench; she elevated one gender-and-race combo as “better” than another; and she hopes it will move jurisprudence toward claimants.

    This is fine if you agree, and not fine if you don’t. Sauce for the goose/gander, etc.

    President Obama’s gloss notwithstanding, why is it stupid to question her on this?

    Comment by K Gray | May 30, 2009

  9. I don’t think it stupid to question Judge Sotomayor on the Duke Conference in 2002. I think it stupid to quote her out of context and call her racist. I have seen transcripts of her entire remarks and they show no such thing. What I see is not questioning, but wild accusations and talking points.

    Comment by Michael Westmoreland-White | May 30, 2009

  10. Justice Sandra Day O’Conner made similar remarks and so did Justice Alito about how their diverse experiences would bring needed viewpoints to the court. No one claimed they were out of order–certainly no conservative freaked out over them.

    Comment by Michael Westmoreland-White | May 30, 2009

  11. She sounds complementarian.

    Comment by K Gray | May 30, 2009

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