posted May 30, 2009 02:45 PM         

Shortly after President Obama announced Sonia Sotomayor as his pick for the Supreme Court, conservatives pulled this bit out of their arsenal: Sotomayor is not up to the job because some of her cases have been thrown out by the Supreme Court.

Wendy E. Long of the Judicial Confirmation Network was one of the first to knock Sotomayor's record, saying that she "has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court." Wendy Wright of Concerned Women for America echoed that talking point, saying that Sotomayor's "high reversal rate alone should be enough for us to pause and take a good look at her record."

Then there was this from the Libertarian National Committee: "Sotomayor has had her rulings thrown out by the court a troubling four times." We learned pretty quickly that the veracity of this statement depends on a few variables.

Let's start by looking at Sotomayor's 11-year tenure on the 2nd U.S. Circuit Court of Appeals. We found that she has authored hundreds of officially published majority opinions - the White House puts the exact number at 380 - and of those, six have been heard by the Supreme Court.

Three have been reversed: Riverkeeper, Inc. vs. EPA; Merrill Lynch vs. Dabit; and Malesko vs. Correctional Services Corp. Among the other three cases: The Supreme Court affirmed her ruling in Empire Healthchoice Assurance, Inc. vs. McVeigh. It affirmed her ruling but but unanimously rejected her reasoning in Knight vs. Commissioner of Internal Revenue. The sixth case, Ricci vs. DeStefano, is still pending. So her record so far at the appellate level is three reversals, two upheld and one pending.

There's also her time on the U.S. District Court between 1992 and 1998. One of her rulings, Tasini vs. New York Times, et al, was reversed by the Supreme Court in 1997. That's how the Libertarian Party gets to its total of four reversed opinions.

Keep in mind that other Supreme Court justices have seen their share of reversals. For the sake of comparison, Supreme Court Justice Samuel Alito, like Sotomayor, wrote hundreds of majority opinions during his 16 year tenure on the 3rd U.S. Circuit Court of Appeals. At least two of those were heard by the Supreme Court and both were reversed: Jo Anne B. Barnhart, Commissioner of Social Security, Petitioner vs. Pauline Thomas and Rompilla vs. Beard.

We were also caught up by the word "troubling" in the Libertarian Party's statement, so we turned to Stephen Wermiel, a law professor at American University Washington College of Law, for some perspective. In fact, the Supreme Court increasingly has a reputation for reversing most of the approximately 80 cases it hears every term, Wermiel said. Indeed, according to data compiled by SCOTUSblog.com, the Supreme Court's reversal rate in 2008 was 85 percent, 61 percent in 2007, and 72 percent in 2006.

Having a case reversed "is not a badge of shame, or a stigma of stupidity or inferiority," Wermiel said. "It's a sign that reasonable minds had a different approach to the issue."

Tom Goldstein, a partner at law firm Akin Gump and author of SCOTUSblog.com, agreed. "In a career as long as [Sotomayor's], she's easily in the mainstream," compared to the reversal rate of other judges.

"The numbers game is childish," said Michael Greve, a legal scholar at the conservative American Enterprise Institute. "You are dealing with all of six cases. What of it?" The best way to evaluate Sotomayor - or anyone else nominated to the highest court - is to look at individual opinions, he added.

So the Libertarian Party is correct that Sotomayor was reversed four times: three at the appellate level and one at the district court level. But this is out of hundreds of potential cases. Furthermore, the Libertarian Party's implication that four cases represents a high rate of reversal just doesn't hold up. Her record is not far off from another well-known justice, Samuel Alito, nor is it at all unusual for the Supreme Court to reverse most of the cases it hears every year, according to legal experts we spoke to. We rate their statement Half-True.
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Sotomayor thinks "that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench."
Judicial Confirmation Network on Tuesday, May 26th, 2009 in a released statement

Sotomayor's comment about Latina women versus white men

If you've been following the story of Supreme Court nominee Sonia Sotomayor via cable news, you've undoubtedly heard this sound bite from a 2001 Sotomayor speech:

"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."

For many conservative detractors, the quote has formed the nexus of their opposition.

In a released statement, Wendy E. Long, counsel to the Judicial Confirmation Network, a conservative nonprofit, said "Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written. She thinks that judges should dictate policy, and that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench."

Previously, we have looked at the issue of Sotomayor's statement about judges making policy. Here we look at the claim that Sotomayor thinks "that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench."

A number of Republicans have expressed concern about the statement.

Sen. James Inhofe, R-Okla., said that due to Sotomayor's comments, the Senate will need to weigh "her ability to rule fairly without undue influence from her own personal race, gender, or political preferences."

On his blog, Newt Gingrich wrote this about Sotomayor's nomination: "Imagine a judicial nominee said 'my experience as a white man makes me better than a latina woman' Wouldn't they have to withdraw? New racism is no better than old racism. A white man racist nominee would be forced to withdraw. Latina woman racist should also withdraw."

Asked repeatedly about Sotomayor's comments during the daily White House press briefing on May 27, 2009, Press Secretary Robert Gibbs admonished reporters not to make a judgment on an 8-second sound clip from a 40-minute speech. Gibbs said he was confident that when people looked at the totality of Sotomayor's speech, and the context of the comment in question, they would "come to a reasonable conclusion on this."

So we read the whole speech, titled "A Latina Judge's Voice," which was delivered by Sotomayor at the University of California, Berkeley, School of Law in 2001, and was later published in the Spring 2002 issue of Berkeley La Raza Law Journal.

The purpose of the speech, she said, was to "talk to you about my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench." She described herself as "Newyorkrican," a born and bred New Yorker of Puerto Rican-born parents, and talked about her close affinity to the Puerto Rican culture as well as her love of America, and how being Latina helped to shape who she is.

She then begins to discuss what it will mean to have more women and people of color on the bench.

"While recognizing the potential effect of individual experiences on perception, Judge (Miriam) 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," Sotomayor said. "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. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought."

"I further accept that our experiences as women and people of color affect our decisions," Sotomayor said. "The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others."

Sotomayor spoke briefly about the contributions of women judges and attorneys in race and sex discrimination cases, while acknowledging that Supreme Courts made up completely of white men have made seminal decisions on those issues. It's in that context that Sotomayor made the statement heard round the world via YouTube.

"Whether born from experience or inherent physiological or cultural differences...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 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."

Sotomayor later concludes that "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 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."

You can read the whole speech for yourself right here.

Tom Goldstein, a partner at Washington law firm Akin Gump and the founder of ScotusBlog, a widely read blog on the Supreme Court, read the speech and concluded it amounted to little more than Sotomayor acknowledging that judges, like anyone, are products of where and how they grew up.

"Having that context can be valuable for a judge," Goldstein said. "There are some cases, like cases of discrimination, where if you have been in someone's shoes, you can better understand it."

posted May 30, 2009 02:50 PM         

"Walking in the door (Sonia Sotomayor) would bring more experience on the bench, and more varied experience on the bench, than anyone currently serving on the United States Supreme Court had when they were appointed."
Barack Obama on Tuesday, May 26th, 2009 in a speech at the White House.

Sotomayor's experience does not significantly outstrip other justices

President Barack Obama introduced his first nominee to the U.S. Supreme Court with much praise.

"It's a measure of her qualities and her qualifications that Judge Sotomayor was nominated to the U.S. District Court by a Republican President, George H.W. Bush, and promoted to the Federal Court of Appeals by a Democrat, Bill Clinton," Obama said. "Walking in the door she would bring more experience on the bench, and more varied experience on the bench, than anyone currently serving on the United States Supreme Court had when they were appointed."

Listening to that quote, you might think Sotomayor was way ahead of the other justices when they were nominated. But after our review of the current justices, we find that Sotomayor has roughly the same experience they had.

Nevertheless, Obama's statement is technically accurate. Here's why:

It appears Obama is only counting legal experience obtained on the federal district courts or courts of appeal. It may surprise you to know that a judge need not sit on the district court level before being named to the higher appellate court. Compared with the sitting Supreme Court justices, Sotomayor is the only one to have experience on both the district court level and the appellate level. Hence Obama's claim that she has "more varied" experience.

But drill down into the numbers, and Sotomayor has more total federal court experience only by a single year, and two justices have more appellate experience than she does.

Sotomayor served six years on the district court level and 11 years on the appellate level for a grand total of 17 years. Contrast this with Samuel Alito, who sat on the Third Circuit U.S. Court of Appeals for 16 years, or Stephen Breyer, who sat on the First Circuit Court of Appeals for 14 years, with four of those as the chief judge. If you consider Sotomayor more experienced than these justices, it's only by a margin of a year or two. And constitutional lawyers (or the judges' moms) might argue that Alito and Breyer's additional appellate experience is more relevant than experience at the district court level.

If we take a broader view of experience than only federal court service, Sotomayor is about the same as most of her would-be fellow justices. (We have compiled a detailed chart on the professional experience of Sotomayor and the Supreme Court justices and have included it at the end of this article.)

This year, Sotomayor will have graduated from law school 30 years ago, with a full legal career under her belt. This is very close to the average number of years of experience we calculated for other justices at the time they were nominated. We calculated the average working experience of the current justices -- omitting David Souter, whom Sotomayor may replace -- and found that the average professional career prior to Supreme Court appointment was 28.7 years. By our count, four justices have slightly more years than Sotomayor in their legal careers: John Paul Stevens, Ruth Bader Ginsburg, Chief Justice John Roberts, and Alito.

To be clear, people could argue a lot over what kind of legal experience is more relevant or important to serving on the Supreme Court. Our analysis is based on years of service, and doesn't reflect the quality of the work of any of the justices.

Listening to what Obama said, though -- "Walking in the door she would bring more experience on the bench, and more varied experience on the bench, than anyone currently serving on the United States Supreme Court had when they were appointed" -- you might conclude that Sotomayor is more qualified than previous nominees to be a Supreme Court Justice. In fact, her legal career and years of experience are in line with the other justices.

Obama's statement is technically accurate, but also implies she's more qualified. We don't find that to be the case. We rate Obama's statement Half True.

Editor's note: For brevity, we've omitted some details of their experience, such as additional educational credentials or service on some boards and commissions.

John Paul Stevens
Took seat on court: Dec. 19, 1975, at age 55
Appellate court: 7th U.S. Circuit Court of Appeals, 1970-1975
Private practice: partner, Rothschild, Stevens, Barry & Myers, 1952-1970; associate, Poppenhusen, Johnston, Thompson & Raymond, 1949-1952
Teaching: Lecturer, anti-trust law, Northwestern University School of Law, 1953-54; University of Chicago Law School, 1955-58
Federal government experience: associate counsel to the U.S. House of Representatives Judiciary Committee, Subcommittee on the Study of Monopoly Power, 1951–1952; member of the Attorney General’s National Committee to Study Antitrust Law, 1953–1955
Other experience: U.S. Navy, 1942-1945; clerk to U.S. Supreme Court Justice Wiley Rutledge, 1947
Degrees: AB from the University of Chicago, 1941; JD from Northwestern University School of Law. 1947
Total federal court experience: 5 years
PolitiFact's estimate of relevant experience: 33 years

Antonin Scalia
Took seat on court: Sept. 26, 1986, at age 50
Appellate court: U.S. Court of Appeals, District of Columbia Circuit, 1982-1986
Private practice: associate, Jones Day Cockley & Reavis, 1961-1967
Teaching: professor, University of Chicago Law School, 1977-1982; professor, University of Virginia Law School, 1967-1974 .
Federal government experience: General Counsel, Office of Telecommunications Policy, 1971–1972; Chairman of the Administrative Conference of the United States from 1972–1974; assistant attorney general, Office of Legal Counsel, U.S. Justice Department, 1974-1977
Degrees: AB, Georgetown University, 1957; LLB, Harvard University, 1960
Total federal court experience: 4 years
PolitiFact's estimate of relevant experience: 26 years

Anthony Kennedy
Took seat on court: Feb. 18, 1988 at age 51
Appellate court: 9th U.S. Circuit Court of Appeals, 1975-1988
Private practice: attorney, 1961-1967; partner, Evans, Jackson & Kennedy, 1967-1975
Teaching: professor, McGeorge School of Law, University of the Pacific, 1965-1988
Other experience: California Army National Guard, 1961
Degrees: AB, Stanford, 1958; LLB, Harvard, 1961
Total federal court experience: 13 years
PolitiFact's estimate of relevant experience: 27 years

Clarence Thomas
Took seat on court: Oct. 23, 1991 at age 43
Appellate court: U.S. Circuit Court of Appeals, District of Columbia, 1990-1991
Private practice: attorney with the Monsanto Company, 1977-1979.
State government experience: assistant attorney general of Missouri, 1974-1977
Federal government experience: legislative assistant to U.S. Sen. John Danforth, 1979–1981; assistant secretary for civil rights, U.S. Department of Education, 1981-1982; chairman of the U.S. Equal Employment Opportunity Commission, 1982–1990.
Other experience:
Degrees: AB, Holy Cross College, 1971; JD, Yale, 1974
Total federal court experience: 1 year
PolitiFact's estimate of relevant experience: 17 years

Ruth Bader Ginsburg
Took seat on court: Aug. 10, 1993, at age 60
Appellate court: U.S. Circuit Court of Appeals, District of Columbia, 1980-1993
Teaching: various research and teaching positions at Columbia University School of Law, 1961-1963 and 1972-1980; professor, Rutgers University School of Law, 1963-1972
Other experience: law clerk for federal court judge, 1959-1961; general counsel to the American Civil Liberties Union, 1973-1980
Degrees: AB, Cornell University, 1954; LLB, Columbia Law School, 1959.
Total federal court experience: 13 years
PolitiFact's estimate of relevant experience: 34 years

Stephen Breyer
Took seat on court: Aug. 3, 1994, at age 55
Appellate court: 1st U.S. Circuit Court of Appeals, 1980-1994 (chief judge, 1990-1994)
Teaching: various positions, Harvard Law School, 1967-1994; Harvard University Kennedy School of Government, 1977–1980
Federal government experience: special assistant to assistant attorney general (antitrust), U.S. Justice Department, 1965-1967; assistant special prosecutor, Watergate Special Prosecution Force, 1973; special counsel, US Senate Judiciary Com., 1974 - 1975; chief counsel, U.S. Senate Judiciary Committee, 1979 - 1981
Other experience: law clerk to U.S. Supreme Court Justice Arthur Goldberg, 1964
Degrees: AB, Stanford University, 1959; BA, Oxford University, 1961; LLB, Harvard University, 1964
Total federal court experience: 14 years
PolitiFact's estimate of relevant experience: 30 years

Samuel Alito
Took seat on court: Jan. 31, 2006, at age 55
Appellate court: 3rd U.S. Circuit Court of Appeals, 1990-2006
Federal government experience: assistant U.S. Attorney, District of New Jersey, 1977–1981; Assistant to the Solicitor General, U.S. Justice Department, 1981–1985; deputy assistant attorney general, U.S. Justice Department, 1985–1987; U.S. Attorney, District of New Jersey, 1987–1990
Other experience: law clerk for U.S. Court of Appeals, Third Circuit, 1976–1977
Degrees: AB, Princeton, 1972; JD, Yale University, 1975
Total federal court experience: 16 years
PolitiFact's estimate of relevant experience: 31 years

John Roberts
Took seat on court: Sept. 29, 2005, at age 50
Appellate court: U.S. Circuit Court of Appeals, District of Columbia, 2003-2005
Private practice: partner, Hogan & Hartson LLP, 1986–1989 and 1993–2003 (associate, 1986-1987)
Federal government experience: special assistant to the attorney general, U.S. Justice Department, 1981–1982; associate counsel, White House Counsel’s Office, 1982–1986; principal deputy solicitor general, U.S. Justice Department, 1989–1993
Other experience: law clerk for U.S. Court of Appeals, Second Circuit, 1979–1980; law clerk for then-Associate Justice William Rehnquist of the U.S. Supreme Court, 1980-1981
Degrees: A.B., Harvard, 1976; JD, Harvard Law School, 1979.
Total federal court experience: 2 years
PolitiFact's estimate of relevant experience: 31 years

posted May 30, 2009 02:52 PM         

Judge Sotomayor has said "that policy is made on the U.S. Court of Appeals."
Republican National Committee on Tuesday, May 26th, 2009 in

RNC claims Supreme Court nominee Sonia Sotomayor said judges make policy

On the day President Obama announced Sonia Sotomayor as his Supreme Court nominee, many conservative opponents seized on a Sotomayor statement they say revealed her as someone who thinks judges make laws.

While Republican National Committee Chairman Michael Steele struck a measured pose - saying Republicans would "reserve judgment on Sotomayor until there has been a thorough and thoughtful examination of her legal views" - the RNC also sent around a talking points memo to the press and hundreds of influential Republicans that claimed "Judge Sotomayor has also said that policy is made on the U.S. Court of Appeals."

And Wendy E. Long, counsel to the Judicial Confirmation Network, called Sotomayor a "liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written. She thinks that judges should dictate policy..."

The conservative blogosphere is full of similar sentiments, all based on the Sotomayor statement, "The Court of Appeals is where policy is made."

So we decided to take a look at the context of Sotomayor's statement. It came during a presentation at Duke University in February 2005. Sotomayor was one of three judges who participated in a panel discussion for law students thinking about applying to be judicial law clerks. Snippets of Sotomayor's comments have been popular on YouTube, see the full, unedited video here (the pertinent part starts around the 43-minute mark).

Sotomayor was asked about the differences between clerking for judges in the federal district courts as opposed to those in federal appeals court.

"The Court of Appeals is where policy is made," said Sotomayor, a federal judge on the U.S. Court of Appeals for the Second Circuit. "And I know this is on tape and I should never say that because we don't make law. I know…I know. (some laughs) I'm not promoting it. I'm not advocating it. I'm…you know. OK. (more laughs)

"Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. It's interpretation. It's application."

So keep in mind the audience and the question here, said Tom Goldstein, a partner at Washington law firm Akin Gump and the founder of ScotusBlog, a widely read blog on the Supreme Court. Goldstein watched the full video, and simply sees it as Sotomayor noting that in comparison to district court judges, "there's more policy involved" in the appeals courts.

"The truth of the matter is, in the court of appeals, they are dealing with gaps and ambiguities in the law," Goldstein said.

There's a lot for judges to interpret. Appeals court judges often have to make a call when a statute is unclear. In a sense, the policy is set by those calls made by the judges, even if they don't want to.

To use that one line from Sotomayor to paint her as an activist judge is misleading, he said.

"She's not a sweeping visionary ideologue in any way," Goldstein said. "Conservatives who are genuinely concerned about the direction of the Supreme Court, they are sort of grasping at straws here. That's an awful lot to put on one sentence."

David Garrow, a historian who follows the Supreme Court, agrees.

There has always been two schools of thought on the role of judges, Garrow said: those who see the law almost as an academic exercise, trying their best to mechanically apply the law; and the legal realists, who believe interpreting the law involves making choices, discretion.

"What she (Sotomayor) said there is simply the honest version of what any judge knows and realizes," Garrow said. But "you're not really supposed to acknowledge it on the record."

It's unfair to extrapolate that comment to suggest Sotomayor would mandate policy, he said.

"To anyone who knows the intellectual history of judicial decision-making, she's just being honest, not activist," Garrow said.

posted May 30, 2009 02:55 PM         

Sotomayor "ruled against the white firefighter - Ricci and other white firefighters - just on the basis that she thought women and minorities should be given a preference because of their skin color and because of the history of discrimination in the past. The law was totally disregarded."
Rush Limbaugh on Tuesday, May 26th, 2009 in his radio program

Rush Limbaugh says Sotomayor disregarded law to rule against white firefighters

While many Republican leaders have been publicly cautious with their opinions about President Obama's nominee for the Supreme Court, Sonia Sotomayor, radio talk show host Rush Limbaugh has been crystal clear about his opposition.

"Do I want her to fail to get on the court? Yes," Limbaugh said on his show on May 26, 2009. "She'd be a disaster on the court."

In making his case, Limbaugh cited a Sotomayor ruling that has drawn scrutiny from critics this week.

"She ruled against the white firefighter - Ricci and other white firefighters - just on the basis that she thought women and minorities should be given a preference because of their skin color and because of the history of discrimination in the past," Limbaugh said. "The law was totally disregarded."

Limbaugh is referring to Ricci vs. DeStefano, a legal case involving firefighters in New Haven, Conn. A group of mostly white firefighters claimed reverse discrimination after the city threw out the results of promotional exams because white firefighters fared significantly better than black firefighters.

Here's what happened. In late 2003, 118 New Haven firefighters took written and oral exams for promotion to the ranks of captain and lieutenant. Among the 41 who took the captain exam (eight of them black), no blacks and at most two Hispanics would have been eligible for promotion to captain. And of the 77 who took the lieutenant exam (19 of them black, 15 Hispanic), the results indicated that no blacks or Hispanics would be promoted to the rank of lieutenant.

The New Haven Civil Service Board worried the test may have violated "anti-disparate-impact requirements" of Title VII of the Civil Rights Act of 1964, and that the city would face an employment discrimination lawsuit from nonwhite applicants who were not promoted. So the board decided not to certify the exam results, and no one was promoted.

The white firefighters, naturally, were ticked off. One of them, John Ricci, is dyslexic, and studied hard to score highly on one of the exams, only to have it invalidated. Eighteen firefighters, 17 whites and one Hispanic, filed a lawsuit against the city claiming the decision not to certify the exam results "amounted to intentional discrimination" against the white firefighters in favor of black firefighters due to their race and political support for the mayor, John DeStefano.

The federal district court judge who heard the case ruled in favor of the city. The firefighters appealed to the 2nd Circuit, the court on which Sotomayor sits.

A three-judge panel that included Sotomayor upheld the district court ruling with a one paragraph explanation:

"We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected."

The brevity of that response, and its lack of analysis, rankled one dissenting appeals court judge, Jose Cabranes.

"The opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination," Cabranes wrote. "This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."

Subsequently, the Supreme Court decided to take up the case, and heard arguments in April.

But back to Limbaugh's claim. That Sotomayor ruled against "white firefighter Ricci and other white firefighters" is undisputed. But this is a very complex legal case and Limbaugh misleads when he boils down the ruling by Sotomayor (and two other appeals court judges), saying it was made, "just on the basis that she thought women and minorities should be given a preference because of their skin color and because of the history of discrimination in the past. The law was totally disregarded."

The ruling by the three-judge panel makes no mention of giving preferential treatment to women or minorities, as Limbaugh suggested. Rather, it upholds a district court decision that the city had the right to throw out a test it felt led to racially disparate results.

The first sentence of the panel's statement is also significant. The judges begin by saying they agree with the district court ruling "substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the (district court)." In other words, without laying out all those opinions, they were essentially incorporating what the district court said.

So we took a look at the opinions delivered by District Judge Janet Arterton on Sept. 28, 2006.

The first thing we note is that the opinion cites numerous other cases to back up various points. That alone weakens Limbaugh's claim that "the law was totally disregarded."

Moreover, Judge Arterton lays out very specific legal reasons for her decision.

"Nothing in the record in this case suggests that the City defendants or CSB (Civil Service Board) acted 'because of' discriminatory animus toward plaintiffs or other non-minority applicants for promotion," Arterton wrote. "Rather, they acted based on the following concerns: that the test had a statistically adverse impact on African-American and Hispanic examinees; that promoting off of this list would undermine their goal of diversity in the Fire Department and would fail to develop managerial role models for aspiring firefighters; that it would subject the City to public criticism; and that it would likely subject the City to Title VII lawsuits from minority applicants that, for political reasons, the City did not want to defend."

The judge cites several cases which, she wrote, "clearly establish" that a public employer faced with the threat of a lawsuit over a test with racially disparate results does not violate civil rights laws by taking "neutral, albeit race-conscious, actions to avoid such liability."

The judge argued the white firefighters could not claim to have been discriminated against because "Here, all applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted."

In siding with the city, the judge wrote that the city's "motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, does not, as a matter of law, constitute discriminatory intent, and therefore such evidence is insufficient for plaintiffs to prevail on their Title VII claim."

posted May 30, 2009 02:59 PM         

Three of her appellate opinions have been overturned, which is 1.3 percent of all that she has written and 60 percent of those reviewed by the Supreme Court.
http://www.factcheck.org/askfactcheck/

posted May 30, 2009 05:04 PM         

Nothing else. Nothing else whatsoever.

Sotomayor is a political activist who believes in and approves of making federal US policy from her court room which is not the job of federal judges nor do they have a shred of authority to do so. Making law is a legislative branch function and authority.

"I would hope that a wise Latina(racist) woman(gender bias) with the richness of her experiences would more often than not reach a "better conclusion"(bigoted) than a white(racist) male(gender bias) who hasn't lived that life."

This Sotomayor statement is a testament to racial and gender bias and bigotry.

Imagine that, a 3fer in one statement

Get over it, she said what she said and it means exactly what it sounds like it means.

Since when does being reversed 4 times...Sotomayor equal being reversed twice..Alito? Someone can't count and can't do percentages.

I notice you're still hooked on the spin doctors at Politifact..a part of the leftist family of the St Petersburg Times.

So, the numb nuts O'Bomber gave Sotomayor a send off with the inexcusable statement she should march up the marble steps to the Supreme Courts and deliver "some justice".

posted May 30, 2009 07:06 PM         

"With regard to that last point -- how completely different is the reaction to Sam Alito and Sonia Sotomayor -- just consider this exchange that took place at the beginning of Alito's confirmation hearing (h/t sysprog):

U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court

U.S. SENATOR TOM COBURN (R-OK): Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

COBURN: Thank you.

Mr. Chairman, I think I'll yield back the balance of my time at this time, and if I have additional questions, get them in the next round.

SPECTER: Thank you very much, Senator Coburn.

Anyone who is objecting now to Sotomayor's alleged "empathy" problem but who supported Sam Alito and never objected to this sort of thing ought to have their motives questioned (and the same is true for someone who claims that a person who overcame great odds to graduate at the top of their class at Princeton, graduate Yale Law School, and then spent time as a prosecutor, corporate lawyer, district court judge and appellate court judge must have been chosen due to "identity politics"). And the idea that her decision in Ricci demonstrates some sort of radicalism -- when she was simply affirming the decision of a federal district judge, was part of a unanimous circuit panel in doing so, was supported by a majority of her fellow Circuit judges who refused to re-hear the case, and will, by all accounts, have at least several current Supreme Court Justices side with her -- is frivolous on its face." http://www.salon.com/opinion/greenwald/2009/05/27/sotomayor/index.html

posted May 30, 2009 07:31 PM         

Not at all what Sotomayor has to say about her appeals court position as a judge.

In Sotomayors court, it's her prerogative to make the law, to make policy...and that's what she said.

posted May 30, 2009 07:44 PM         

no one is operating in a vacuum. including you. your sources are generally spinmeisters and your conclusions usually foregone.

and we could probably talk till the cows come home and neither one change their mind. so have a nice night.

posted May 30, 2009 08:11 PM         

Journalistic bias is one thing, but journalistic arrogance is quite another.

When reporters claiming to be neutral political fact-checkers go beyond mere reporting to state with absolute certainty things they cannot possibly know, they run the risk of churning out political opinion masquerading as high-minded investigative journalism.

This is exactly what the reporters at the fact-checking operation PolitiFact.com sometimes do. A project of the St. Petersburg Times, the website's "Truth-O-Meter" purports to check and rate "the accuracy of statements by candidates, elected officials, political parties, interest groups, pundits, talk show hosts."

After PolitiFact writers research a statement, it then receives one of six ratings on a continuum of truthfulness: True, Mostly True, Half True, Barely True, False and Pants on Fire.

It sounds very Woodward and Bernstein with some hip Internet-savvy irreverence thrown in, doesn't it?

That's what I thought before I looked into the matter.

It turns out that those who serve the Truth-O-Meter often have strange ideas about what constitutes truth.

Let's look at how PolitiFact handled Rep. Michele Bachmann's recent claim that the much investigated activist group ACORN was eligible for up to $8.5 billion in federal funding this year.

Like everything having to do with ACORN, it's very complicated.

Reporter Robert Farley sets the tone for the piece in his first paragraph, writing that "Bachmann's latest outrage focuses on an old nemesis: ACORN." As blogger Bryan White points out at Sublime Bloviations:

The first sentence is an attack on Bachmann. The statement implies that she is guilty of serial outrage, though PolitiFact has only previously rated two of her statements. And regardless of how many were rated, the opening statement is an editorial judgment with no place in an objective news story.

Farley conveniently offers a sinister motive to explain Bachmann's anti-ACORN activities. ACORN has a "complex corporate structure," but "[t]he ACORN that Republicans love to hate gets involved in political activity like voter registration."

Farley quotes from Bachmann's website which reposted an article by Kevin Mooney of the Washington Examiner:

At least $53 million in federal funds have gone to ACORN activists since 1994, and the controversial group could get up to $8.5 billion more tax dollars despite being under investigation for voter registration fraud in a dozen states.

Farley incorrectly identifies the statement as coming from a Bachmann press release and then systematically dissects the Minnesota Republican's claim, repeated on television, that ACORN is eligible for as much as $8.5 billion in federal funding.

Eventually he ends the tortuous suspense and declares the assertion "absurd" and "irresponsibly misleading on several levels" as the Truth-O-Meter officially pronounces the claim "False."

But is it?

Not at all. As Farley acknowledged, I am the original source for the $8.5 billion figure that was reported by the Washington Examiner. I covered the complexities of housing finance on Capitol Hill for nearly seven years as a reporter in the Washington bureau of the venerable Wall Street daily, the Bond Buyer. Here's how I came up with the amount.

The $800 billion-plus stimulus bill that President Obama signed into law Feb. 17 contains $2 billion in funds for housing redevelopment and $1 billion for Community Development Block Grants (CDBG). Separately, the proposed $47.5 billion fiscal 2010 budget for the U.S. Department of Housing and Urban Development provides $1 billion for an affordable housing trust fund and $4.5 billion in CDBG funds.

There is no legal impediment of which I am aware that would prevent ACORN taking in the whole $3 billion sum from the stimulus package, which has already been enacted. There is also no bar to ACORN taking in the entire $5.5 billion from the HUD budget, which is pending before Congress.

In other words, ACORN is indeed eligible for the whole $8.5 billion, as Bachmann said.

The congresswoman said much the same thing on the May 18 edition on CNN's Lou Dobbs Tonight. Debating ACORN ally House Financial Services Committee chairman Barney Frank (D-Massachusetts), Bachmann, a former tax litigation attorney, chose her words carefully.

She said she was worried about the fact that ACORN and other political advocacy organizations would "have access potentially to $8.5 billion" in federal funds:

Well, what I am concerned about is the eligibility criteria of organizations who have access to government grants. ACORN has received approximately $53 million since the early 1990s. Now, between the stimulus and the budget that was passed by President Obama, they have access potentially to $8.5 billion.

She again stressed the issue of eligibility during the broadcast, saying "we are talking about potential of access to ACORN or other similarly situated groups of $8.5 billion in grants." Bachmann never said ACORN alone was going to receive $8.5 billion, but Farley then proceeds as if she had, writing a news article that depicts something quite different from what actually transpired.

Farley states correctly that CDBG is an old program created in the 1970s. "To the extent ACORN has been eligible for CDBG money for decades, it is available to ACORN now."

Misinterpreting the evidence before him, he opines that "ACORN isn't eligible for CDBG funding. At least not for the controversial voter registration efforts that Republican leaders claim are a willful effort to forward the group's liberal agenda."

"We checked, and there is no money in the stimulus package or the budget for voter registration programs," Farley writes. "So if ACORN Housing was to apply for and receive CDBG money, it would be for a very specific project. And legally, it could not be transferred to other ACORN affiliates to perform political activities like voter registration."

But ACORN has somehow managed to get its hands on CDBG funds, according to House Minority Leader John Boehner (R-Ohio). In a letter to President Bush Oct. 22, he wrote that his staff had determined that "ACORN has received more than $31 million in direct funding from the federal government since 1998, and has likely received substantially more indirectly through states and localities that receive federal block grants."

ACORN is notorious for its huge financial transfers from one affiliate in the network to another. "ACORN is constantly shifting funding," he quoted me saying. "The problem is that ACORN transfers vast sums of money around in its network all the time. We don't know whether the money would be spent on voter registration or other activities."

And of course, even though neither Bachmann nor I actually said ACORN Housing was necessarily going to be the protagonist in this publicly funded drama, Farley keeps pounding away. He accepts at face value a dubious statement by ACORN executive director Steven Kest that ACORN won't apply for or receive a large chunk of the federal money in the stimulus package or HUD budget.

Farley cites an Employment Policies Institute report that states that ACORN Housing "has paid more than $5 million in fees or grants to other ACORN entities." He notes that the report does not claim "that federal tax dollars were shifted into ACORN voter registration efforts."

For the record, after Farley interviewed me I followed up with more research. Some hours later I emailed him a list of suspicious transactions that ACORN Housing disclosed in its tax returns from 1997 through 2006. For that period alone, I identified more than $4 million in unusual transfers to other ACORN affiliates. The largest individual transaction was a $947,609 grant in Tax Year 2004 to the American Institute for Social Justice, an ACORN affiliate.

The institute has taken in money for voter drives from foundations such as the Wallace Global Fund. According to its own website, the institute trains community organizers "to build and mobilize a constituency for change needed to transform poor communities"

And ACORN Housing discloses in the aforementioned tax returns that it received more than $18 million in federal money from 1997 through 2006.

Given the constant, well-documented shifting of funds within the nebulous ACORN network, how can Farley say with a straight face after his superficial examination of the facts that he knows for certain that federal tax dollars were not shifted into the ACORN network's voter registration efforts?

No one involved in the ACORN mess seems able to explain why ACORN Housing and other ACORN affiliates that are not supposed to be involved in elections routinely send money to ACORN affiliates such as the institute whose sole purpose is to organize and participate in the electoral process.

This is not to say that I don't understand Farley's desire to show his readers that in all likelihood ACORN won't get $8.5 billion from Uncle Sam this year. That's legitimate journalism. But instead of making that straightforward point, he chose instead to attack Congresswoman Bachmann, a favorite target of the left, and to try to depict her as a shameless liar.

That's reprehensible.

A more honest ruling by PolitiFact might have taken this form: "True, ACORN is eligible for $8.5 billion in federal funding but based on the evidence we don't think ACORN will get anything close to that amount from the federal government this year."

But that's not what Farley wrote.

Should anyone really be surprised that PolitiFact, part of the St. Petersburg Times, would have a liberal bias?

On Oct. 24, PolitiFact gave then-vice presidential candidate Sarah Palin's statement that Obama would "experiment with socialism" a "Pants on Fire" ruling.

An editorial in Wednesday's print edition of the newspaper hails President Obama's selection of undistinguished radical jurist Sonia Sotomayor to fill the Supreme Court slot of retiring Justice David Souter. As if reading from an administration press release, the newspaper gushes that Sotomayor is someone with a "powerful intellect who demonstrates compassion and a common touch."

On May 22 an editorial lauded the president for a recent speech in which he "laid out a cogent framework to return to the rule of law in the future treatment of terrorism suspects and close the prison." Former Vice President Dick Cheney, on the other hand, was described as spewing "vitriol" and "recklessly" arguing that Obama's policies were encouraging more terrorist attacks.

On May 20 an editorial served as environmentalist cheerleading for the president's tougher fuel economy standards for cars and trucks, describing them as "a much-needed win for consumers, the environment and the struggling automotive industry."

On Sept. 14, an editorial attacked Sen. John McCain's presidential campaign. "McCain's straight talk has become a toxic mix of lies and double-speak," it said.

A left-wing slant seems embedded in the paper's DNA.

Former St. Petersburg Times associate editor Martin Dyckman recalled what it was like being in the newsroom in 1963 when President John F. Kennedy was assassinated.

Dyckman, who retired as associate editor in 2006, reminisced that on that terrible day he "was standing at the teletype when the first flash came in that a suspected Marxist, Lee Harvey Oswald, was being held in connection with the shooting."

posted June 01, 2009 10:41 AM         

I thought we were beyond this. After all, we're told – repeatedly – that with the election of Barack Obama, we're in a post-racial world.

Then what about federal appeals court judge Sonia Sotomayor, named the presidential choice to fill the U.S. Supreme Court vacancy?

No more would we look at skin color, racial heritage or sex when dealing with individuals. That was so yesterday. We're so more advanced now.

Then, why is the judge introduced to us as a woman – a "Latina" at that – who's had a tough life and succeeded beyond expectations, at least of those telling us about her?

In this post-racial age, the only considerations should be skills, experience, accomplishments, abilities, talents – all visible, measurable attributes. They have nothing to do with place or circumstance of birth, sex, nationality, ethnicity, skin color or family life.

Then why do liberals and Democrats consider her untouchable – no criticism allowed? If anyone is brash enough to raise questions about her judicial qualifications, they're hit with the all purpose epithet of the day: Racist!

When Barack Obama announced Sotomayor as his choice – apparently all the finalists were women. It's hard to believe no men were qualified. Obama stressed her heritage, saying she'd be a judge with empathy.

Empathy? Do they teach that in law school these days? Apparently so, but you're still hard pressed to understand how a judge infuses empathy in deliberations involving rape, torture, murder, cruelty or cases dealing with the constitutional rights of citizens being infringed upon by individuals, businesses or government entities.

Judge Sotomayor's words came back to haunt the president. Whether they bother her isn't known; she's had no response thus far.

At issue is her 2001 speech to the law school at the University of California, Berkeley. She said: "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."

She also said: "Our gender and national origins may and will make a difference in our judging."

She admitted some of her judging would be "based on my gender and my Latina heritage."

Here's another: "Personal experiences affect the facts that judges choose to see."

I see. The judge deliberately picks and chooses among evidence and facts. That certainly makes a farce out of a trial.

Not satisfied to elevate Latin women and denigrate white men, she elaborated, saying she accepts "that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that – an aspiration because it denies the fact that we are by our experiences making different choices than others. … [E]nough people of color in enough cases will make a difference in the process of judging."

It doesn't take a genius to see what she means: A Latina is a more qualified judge than any white man and, all people of color are better than whites. She says "white male" but no doubt she means female, too.

Clearly, she believes it's a way to change the courts and the law.

She continued, that it's good to work toward fairness and integrity based on the reason of law, but she's not sure it's "possible in all or even most cases."

She said that by ignoring "our differences as women or men of color we do a disservice both to law and society."

She acknowledged she's not sure if it's because, as some theorize, of different perspectives resulting from cultural experiences or basic differences in logic and reasoning.

Let's see. Women and people of color not only are culturally different, even if all are American citizens, they have different perspectives on law and their brains work differently.

Now who's racist?

Does anyone doubt that if any white judicial candidate said that about a minority they'd be immediately drummed out of consideration and probably drummed out of the legal profession.

But for Judge Sotomayor, it's OK and also OK she's a member of La Raza (a militant, racially oriented Hispanic rights organization) and that her Cal speech was reprinted a year later in the Berkeley La Raza Law Journal.

When her words came to light, conservatives raised criticism and immediately were smacked down with allegations of racism. Even presidential press spokesman Robert Gibbs hinted threats by saying such criticisms were "dangerous."

What does that mean?

The president said nothing for a few days but finally responded Friday, saying "I'm sure she would have restated it." This was reported without saying how he knew that and even Gibbs chimed in by saying, "I think she'd say that her word choice in 2001 was poor."

Poor?!? A woman who's a judge and who aspires to the Supreme Court for life, yet she makes "poor word choices"?

The law is about ideas and words. A judge can't rule, then later decide her word choice was "poor."

I don't want judges, on any level, making decisions affecting the lives and futures of millions based on such superficial whimsy.

A letter to the editor of the San Francisco Chronicle, May 28, from Julio Ramos, provides insight. Ramos says he's a lawyer and was in a courtroom when Sotomayor, in the Southern District of New York, was sentencing defendants.

"In one instance, a young, female Hispanic defendant was facing years in prison for being a mule in a drug distribution ring in the Bronx. The young woman pleaded in Spanish for leniency from the judge, who was so moved by the defendant's tearful plea and life story that she admonished the U.S. attorney's to revisit the issue of the harsh sentence they were seeking, and continued the matter."

Apparently that's Obama's idea of "empathy."

posted June 01, 2009 06:42 PM         

A conservative group and a liberal one make their points about Sotomayor sans vitriol and distortion.

Summary

Both the Coalition for Constitutional Values, a liberal group supporting Sonia Sotomayor's nomination to the Supreme Court, and the Judicial Confirmation Network, a conservative organization that opposes President Obama's choice, have ads up attempting to enhance or undermine her confirmation prospects.

The ads are accurate and civil. JCN's spot, which is running only on the Internet at this point, quotes extensively from Sotomayor's own remarks about how she hoped that a "wise Latina woman with the richness of her experiences would more often than not reach a better conclusion" than a white male without those experiences. The entire soundtrack of the Coalition for Constitutional Values ad is from Obama's May 1 remarks about Justice David Souter's departure; biographical bullet points and photos of Sotomayor appear on the screen.

So far, so good. Of course, the average number of days from the announcement of a Supreme Court nominee until his or her confirmation, for the last four justices, has been 72 – plenty of time for mischief to materialize. We'll be watching.

Analysis

These early ads lack the vitriol of some that have run against previous nominees to the high court. In 2005, for instance, we wrote about one that falsely implied nominee John Roberts had supported abortion clinic bombers. Then again, it's likely that at least two months will pass before Sotomayor's nomination comes up for a vote in the full Senate – plenty of time for these and other groups to cut more ads. We'll keep readers posted on any new spots, but meanwhile, here's our take on the current crop.

The Judicial Confirmation Network has been in operation for several years, while the Coalition for Constitutional Values is populated by several well-known organizations normally active on the liberal side of judicial nominations, including the Alliance for Justice.

Biographical Bits

Coalition for Constitutional Values Ad:
"Justice" President Obama: I will seek somebody with a sharp and independent mind. Someone who understands that justice isn’t about some abstract legal theory, it is also about how our laws affect the daily realities of peoples’ lives, whether they can make a living, and care for their families, whether they feel safe in their homes. I will seek somebody who is dedicated to the rule of law, who shares my respect for constitutional values on which this nation was founded.

The remarks by President Barack Obama that play in the Coalition for Constitutional Values' ad date from May 1, when he made a surprise appearance in the White House press room after speaking with retiring Justice David Souter by phone. Interrupting Press Secretary Robert Gibbs' regular daily session with reporters, Obama talked about what kind of person he would seek to fill the slot.

The quotes used in the ad are a fair representation of what he said, although the group chose to leave out Obama's mention of "empathy," which we quote here:

Obama, May 1: I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.

The reason for omitting those words from the ad may be that "empathy" has become something of a flash point among critics on the right. Here's Republican Sen. Lindsey Graham of South Carolina on "Fox News Sunday" with Chris Wallace a month later:

Sen. Graham, May 31: If I do that, if I look at her philosophy, her legal philosophy, which I think is very activist in nature – this empathy word is just a code word for activism.

We note in passing that empathy wasn't considered a bad word when President George H.W. Bush used it when he introduced Clarence Thomas as his Supreme Court nominee in 1991:

Bush, July 1, 1991: I have followed this man's career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor.

The visuals paired with Obama's voice in the group's ad are simply still photos of Sotomayor mixed with some biographical text, such as her educational background. Some bits are factual; others are clearly opinion: "Principled, fair-minded, independent," for example. We'll leave it to readers to decide whether those sorts of judgments about Sotomayor's character are accurate.

A Lifetime of Experience

Judicial Confirmation Network Ad:
"Equal Justice Under Law?" Narrator: President Obama has nominated Judge Sonia Sotomayor to the U.S. Supreme Court. He’s said why he thinks Judge Sotomayor belongs on the nation’s highest court. But what does she have to say for herself? Here’s Judge Sotomayor in her own published words:

The Judicial Confirmation Network's Internet ad highlights the same Sotomayor statements that have been Topic A for conservatives over the last week. The narrator reads Sotomayor's remarks from a 2001 lecture she gave at Berkeley's Boalt School of Law about how her background affects her work.

The quotes in the JCN ad are certainly accurate. She was speaking of the disproportionately low representation of Latinos and women in the judiciary – noting that these groups make up only 10 out of 147 active circuit court judges and 30 out of 587 active district court judges. And she expressed thoughts such as this: "I ... 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."

But she also made the remark about hoping "that a wise Latina woman with the richness of her experience" would usually reach a better decision than a white man. The Obama administration has indicated that she will back down from that statement, which isn't playing well.

Obama, May 29: I'm sure she would have restated it, but if you look in the entire sweep of the essay that she wrote, what's clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through.

And, as Fox's Wallace pointed out, Justice Samuel Alito said something not dissimilar during his confirmation hearing in 2006 after being nominated by President Bush:

Alito, Jan. 11, 2006: When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

The ad concludes with a clip of Sotomayor's statement that the "Court of Appeals is where policy is made," which is, for conservatives, a red flag indicating an "activist" judge of the kind they often critique. We provided some context for her remark in a recent post on the FactCheck Wire.

While the air wars have been relatively calm, we've answered some questions about things being said about Sotomayor by figures like Rush Limbaugh and gun rights advocates. As we wrote in one Ask FactCheck item, it's not true that 80 percent of the judge's appellate rulings have been overturned by the Supreme Court. First, only five of them have been reviewed by the Court at all, and second, of those, three were reversed. In another item, we confirmed that Sotomayor has ruled that the Second Amendment doesn't apply to states and localities, thus those non-federal jurisdictions can regulate and ban weapons.

– by Viveca Novak

Sources
Fox News Sunday with Chris Wallace. Fox News Network, 31 May 2009.

Moore, Kristina. “Timing Sotomayor’s Senate Confirmation,” Scotusblog.com, 26 May 2009.

Tapper, Jake and Sunlen Miller. “POTUS Interrupts Press Briefing to Announce Souter's Retirement, Announce Qualifications for Next Supreme,” Political Punch, abcnews.com. 1 May 2009.

Garrett, Major. “Obama Pushes for 'Empathetic' Supreme Court Justices,” foxnews.com. 1 May 2009.

Tumulty, Karen. “Why God Invented C-Span,” Swampland, time.com. 29 May 2009.

posted June 02, 2009 09:43 AM         

Sotomayor and the Tyranny of Empathy
Monday, June 1, 2009 2:20 PM
By: Scott Wheeler

Obama missed an opportunity to be presidential and instead chose to play gutter politics and show himself for the hack that he is.

He could have nominated a qualified acceptable candidate for the Supreme Court, regardless of the person’s race or gender, which would have had bipartisan support. But instead of rising above partisan politics and delivering the “change” he promised during the campaign, he called a play right out of the standard Democratic dirty-tricks playbook: the race hustle.

The mainstream media did its part by reading directly from the Democratic talking points and repeatedly added the White House manufactured line, “how can Republicans oppose Sonia Sotomayor without alienating Hispanics?”

What an awful insult to the Hispanic community to suggest that their interests are no deeper than the color of someone’s skin.

How sad it is that Obama would select someone whose judicial views are so antithetical to the constitution and then use that person’s race to divide the country for his political benefit.

So concerned is the Obama administration about a close examination of Sotomayor’s judicial record, White House press secretary Robert Gibbs issued this warning: “I think it is probably important for anybody involved in this debate to be exceedingly careful with the way in which they’ve decided to describe different aspects of this impending confirmation,” signaling that any opposition to Sotomayor’s nomination would be considered anti-Hispanic.

Obama has said that “his judges” would have “that quality of empathy, of understanding and identifying with people’s hopes and struggles.” And when Obama’s corrupt associates run headlong into the rule of law he will make sure that they aren’t inconvenienced, “I will seek someone who understands that justice isn’t about some abstract legal theory.”

So there you have it; to Obama, the law of the land is “an abstract legal theory” not to get in the way of his agenda.

A chilling, January 2001 interview reveals what far-reaching consequences Obama-styled “empathy” can have for the rule of law and the U.S. Constitution. “The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society,” Obama told an interviewer for a Chicago radio station.

He went on to complain that when ultra-liberal, judicial activist Earl Warren was chief justice of the Supreme Court “it didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution.”

He seems to really miss that the whole point of the Constitution was to prevent tyrants from “break[ing] free” from the rule of law and declaring themselves the final arbiters of what is legal. But, then again, maybe he doesn’t miss that point at all.

In the grand scheme of things, Sotomayor seems a perfect fit for Obama. She has already declared that her biases as a “Latina woman” are superior to her white male counterparts. To Obama and Sotomayor, the Constitution is only a temporary impediment to their “empathetic” nirvana.

Everyone, especially Hispanics, should be outraged by this cynical use of race by the Obama administration. Obama has cleverly diffused outrage by doing so many outrageous things across a wide spectrum.

Are there any elected Democrats expressing their displeasure with Obama’s cynical use of race? Of course not, it’s a game they have been playing for a long time. When you take the race baiting and class warfare away from Democrats, all that is left is raw anti-Americanism.

Scott Wheeler is executive director of The National Republican Trust PAC (GOPtrust.com), the nation's third-largest political action committee.

posted June 04, 2009 01:28 PM         

Gingrich conceded that Sotomayor's rulings have "shown more caution and moderation" than her speeches and writings but he said the 2001 comments "reveal a betrayal of a fundamental principle of the American system — that everyone is equal before the law -"

ie, she may have those sentiments but she rules by law not sentiment...

posted June 04, 2009 02:50 PM         

Fortunately, this Supreme Court decision will come down before Sotomayor is confirmed by the Senate.

How about that; a race and gender biased and bigoted federal judge getting reversed by the high court just before the Senate votes on her confirmation...to join that high court.

posted June 04, 2009 08:01 PM         

don't count your chickens, jwhop, this woman has had very few reversals in proportion to the number of cases she has sat, and i doubt you are privy to all the information as she was.

posted June 04, 2009 11:11 PM         

Actually katatonic, you didn't know I would say that about Newt. To most conservatives Newt is an arch conservative.

I changed my mind about Newt when I saw he had joined the insufferable airhead Nancy Pee-lousy and posed for an ad promoting "climate change".

posted June 05, 2009 07:57 AM         

Sotomayor with Arlen Specter who recently fled the Republican Party and joined the Democrats when it became obvious he would be defeated in the Republican Primary

Supreme Court nominee Sonia Sotomayor delivered multiple speeches between 1994 and 2003 in which she suggested "a wise Latina woman" or "wise woman" judge might "reach a better conclusion" than a male judge.

Those speeches, released Thursday as part of Sotomayor's responses to the Senate Judiciary Committee's questionnaire, (to see Sotomayor's responses to the Senate Judiciary Committee click here and here) suggest her widely quoted 2001 speech in which she indicated a "wise Latina" judge might make a better decision was far from a single isolated instance.

A draft version of a October 2003 speech Sotomayor delivered at Seton Hall University stated, "I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion." That is identical to her October 2001 remarks at the University of California, Berkeley that have become the subject of intense criticism by Republican senators and prompted conservative talk show host Rush Limbaugh to label her "racist."

In addition, Sotomayor delivered a series of earlier speeches in which she said "a wise woman" would reach a better decision. She delivered the first of those speeches in Puerto Rico in 1994 and then before the Women's Bar Association of the State of New York in April 1999.

The summary descriptions of speeches Sotomayor provided indicated she delivered remarks similar to the 1994 speech on three other occasions in 1999 and 2000 during two addresses at Yale and one at the City University of New York School of Law.

posted June 05, 2009 11:53 AM         

83% Say U.S. Legal System Should Treat All Americans Equally
Friday, June 05, 2009

Eighty-three percent (83%) of U.S. voters say America’s legal system should apply the law equally to all Americans rather than using the law to help those who have less power and influence. A new Rasmussen Reports national telephone survey shows that just 8% disagree.

This belief is shared overwhelmingly by Republicans, Democrats and voters not affiliated with either party.

However, voters are more divided when asked how the legal system is actually performing today. Thirty-seven percent (37%) say the U.S. legal system generally provides unfair advantages to minorities, while 34% say it generally treats all Americans equally.

Eighteen percent (18%) of voters say the American legal system generally discriminates against minorities.

Here a partisan gap emerges. While nearly half of Republicans and unaffiliated voters think the legal system provides unfair advantage to minorities, just 24% of Democrats agree.

One-third of Democrats say the system discriminates against minorities, a view that has single-digit support among GOP voters and unaffiliateds.

Fifty-nine percent (59%) of African-Americans say the legal system generally discriminates against minorities, a view shared by only 14% of whites.

Voters overwhelmingly believe that well-qualified male and female judges – after carefully examining all the facts, studying the appropriate law and honestly trying to apply the law as it was written - would reach the same conclusion most of the time. They say the same of well-qualified white and Hispanic judges.

Preisdent Obama’s first Supreme Court nominee, Judge Sonia Sotomayor, said in a 2001 speech, “Whether born from experience or inherent physiological or cultural differences … our gender and national origins may and will make a difference in our judging.” She added, “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.”

Sotomayor’s critics have seized on these comments to suggest that as a Supreme Court justice she might not rule on the basis of the law alone. The president has since said that Sotomayor “misspoke.”

Forty-eight percent (48%) of voters say that most Supreme Court justices, when considering important cases, carefully examine all the facts, study the appropriate law and honestly try to apply the law as it is written. Twenty-seven percent (27%) disagree, and 25% are not sure.

Americans initially responded more favorably to Sotomayor’s nomination than any of President George W. Bush’s candidates for the Supreme Court, but that support has lessened slightly a week after Obama announced his choice.

Voters are closely divided over whether Obama’s nominees for the Supreme Court will be too liberal or just about right.

A plurality of voters say the president thinks Supreme Court justices should decide cases based on a sense of fairness and justice rather than what’s written in the U.S. Constitution. But voters by more than a two-to-one margin say the justices should base their rulings on what is written in the Constitution.

The Supreme Court is the branch of the federal government that has the highest level of public trust.

posted June 06, 2009 10:38 AM         

Mustn't say anything bad about Sotomayor, mustn't lay out her record of racial and gender bias or her bigotry. So say the screeching, screaming, shrieking hysterical Marxist Socialists in the White House and Congress.

But, for these hysterical screeching Marxist Socialists it's a different story altogether when minorities are nominated by a Republican. Then the shriekers of brain dead Marxist ideology consider it their duty to rip those nominees to shreds by whatever means possible.

June 06, 2009
Sotomayor and the Ugliness of Identity Politics
By Brian Garst

The calculated nomination of judge Sonia Sotomayor to the Supreme Court is the latest example of the rejection of the idea of a color-blind society. Martin Luther King dared to dream of a future when his four children could "one day live in a nation where they will not be judged by the color of their skin, but by the content of their character." Unfortunately Yolanda King, the eldest of his children, passed away before that dream was ever realized, as today the discussion surrounding the newest Supreme Court nominee is about the color of her skin, rather than the merit of her judicial philosophy.

Defenders of Sonia Sotomayor's nomination have taken to condemning the rhetoric of Rush Limbaugh and Newt Gingrich under the pretense that the conservative icons are responsible for denigrating the discussion and making it all about race. This could hardly be further from the truth. It is the proponents and adherents of identity politics, the most prominent of which who now resides in the White House, that have burdened us with perpetual discussion about irrelevancies like race, and it is Sonia Sotomayor herself who has made it her defining characteristic. This is a far cry from the post-racial promise of the Barack Obama campaign.

The politics of identity is always presented as an end in itself, that the goal is to achieve representation for minority groups. But in practice it is a tool designed to obscure the true objectives of its practitioners: the advancement of left-wing politics. It is the political beliefs of the individual, and not their group membership, that determines whether identity politics will be used for or against them, to enhance their reputations or to destroy them. This is the exact opposite of what proponents of identity politics proclaim. The contrast between the treatment of Sonia Sotomayor on the one hand, and Miguel Estrada, Clarence Thomas and even Michael Steele on the other, perfectly illustrates this point.

Opposition to the appointment of Clarence Thomas from the left was both bitter and racial. They were apparently not so impressed with compelling life stories in 1991, despite the fact that Clarence Thomas rose from absolute poverty, his hometown lacking sewage and paved roads. Having been raised by an illiterate grandfather in Savannah, Georgia, Thomas often witnessed the debilitating impact of racism first hand. He overcame these obstacles thanks to the ideas of hard work and perseverance instilled in him by his grandfather. Did these facts lead liberals to conclude that Thomas had "wisdom accumulated from an inspiring life's journey," as President Obama said of Sotomayer? Hardly. Obama stated during the campaign that he would not have nominated Thomas.

At the time of Thomas' nomination, Julian Bond penned a Washington Post editorial to explain opposition to what would be only the court's second black member from the NAACP, a group ostensibly designed to help advance black people like Thomas. Bond rejected the idea that Thomas's experience qualified him for the seat and declared that the opposition, "shouted 'no' to the notion that Thomas's commendable rise from poverty...[was] sufficient qualification for a lifetime appointment to the Supreme Court." On the contrary, "his reward should be a well-lived life, not permanent appointment to the Supreme Court."[i] Don't hold your breath waiting for similar conclusions about Sotomayor, despite the many questions raised, by Obama supporters no less, regarding her intellectual prowess on the court. And let's not even get into how often words like "Uncle Tom" were thrown about during Thomas' confirmation process.

Speaking of Uncle Toms, Michael Steele also found himself on the wrong end of the identity politics agenda when he ran for the U.S. Senate in 2006. In a demonstration of liberal tolerance, Steele was pelted with Oreo cookies, supposedly signifying his status as black on the outside and white on the inside. Maryland democrats explicitly condoned these and other racial attacks on the grounds that being black and conservative justifies a response of racism and hatred.[ii]

The most shocking case, however, is that of Miguel Estrada. Estrada was nominated by President Bush for the U.S. Court of Appeals for the D.C. Circuit, a position he was, by most accounts, more than qualified for. Estrada graduated magna *** laude from Harvard Law School, where he was also editor of the Harvard Law Review, a post that would later be highly touted on Obama's thin Presidential resume. In addition to time spent in private practice, Estrada went on to clerk for Supreme Court Justice Anthony Kennedy, and then joined the Department of Justice during the Clinton Administration as an Assistant to the Solicitor General.

In 2001, President Bush made the Estrada appointment to the Court of Appeals. The democratic response was apocalyptic, and Estrada was eventually forced to withdraw after 2 years of stonewalling and filibusters. Thanks to a slew of leaked memos between democratic Senators and liberal interest groups, we now know the despicable motives behind this opposition: Estrada was an Hispanic who might one day be appointed to the Supreme Court, and by a Republican, no less. One memo highlights that Estrada was "especially dangerous" in part because he "is Latino." In the twisted world of identity politics, advancement of minority groups is only acceptable when it's made through the appropriate political party, namely the democrats. Conservative minorities are not afforded the same benefits of identity politics as liberal minorities, because they are a threat to the condescending notion that minorities may only think and vote democratic.

Naturally, Estrada's opposition had to come up with better reasons than blatant racism to publicly oppose a candidate even they admit in the memo was "clearly an intelligent lawyer." In their "talking points" section, they justified opposition on the grounds that he "has serious temperament problems," and is a "right-wing zealot." This last line of attack is somewhat baffling given the repeated claims that he "has virtually no paper trail." And far from being the asset touted with Sonia Sotomayor, Estrada's "compelling life story" was dismissed as evidence of nothing more than "affirmative action." It's hard to imagine the uproar if a similar statement were to be made about Sotomayor today.

The different treatment of Sotomayor and other minorities by the proponents of identity politics is puzzling only when we make the mistake of taking them at their word that they seek merely to advance historically disadvantaged groups. But when the cloak is removed, we see that the real objective is to advance the Democrat Party and the leftist agenda. Perhaps in this small way Dr. King's dream finally has been realized: those standing in the way of liberal democrats will be subjected to the abusive politics of personal destruction regardless of race or creed.

posted June 06, 2009 01:44 PM         

the fact that you would immediately negate his statement by a slur on HIS character shows the rigid vehemence of your determination that this woman must be a plant by the socialist beast who was VOTED into office. the one case you have cited is not described in details a judge would have to consider, so you are making your judgment on partial information.

posted June 06, 2009 04:40 PM         

Hahaha, Newt didn't say any such thing.

"Sotomayor's rulings have shown more caution and moderation" than her speeches and writings"

That's not saying much since her writings and speeches show Sotomayer to be racially and gender biased in addition to being bigoted.

"Gingrich conceded that Sotomayor's rulings have "shown more caution and moderation" than her speeches and writings but he said the 2001 comments "reveal a betrayal of a fundamental principle of the American system — that everyone is equal before the law -"