The Case Against Sotomayor

[Purple State]

While there was a lot of criticism of his legal views, I don't recall a flood of questions about Alito's intellectual ability when he was nominated, yet he seems no more qualified than Sotomayor.  One must ask if she is being held to a different standard.

Alito was editor of the Yale Law Journal, clerked for Judge Leonard I. Garth of the Third Circuit, was United States Attorney for the District of New Jersey for 3 years, and spent 16 years on the United States Court of Appeals for the Third Circuit.  He was extremely qualified, perhaps even more so than Sotomayor.

Wait...it's not okay to ignore all of that because Bush picked him? F**CK!

It seems the White House wants to get this through earlier than I expected, meaning it will cost him political capital. Now it is clearly important that he not choose someone who will result in a backlog or derailing of his entire agenda.

[Lunar]

that means squeaky clean > tokenism?

[Purple State]

that means squeaky clean > tokenism?

I don't know why they can't be one in the same. But clean tokenism > robust liberal at this point.

[Lunar]

While there was a lot of criticism of his legal views, I don't recall a flood of questions about Alito's intellectual ability when he was nominated, yet he seems no more qualified than Sotomayor.  One must ask if she is being held to a different standard.

That's a long post, I'll try and get to it later.  Let me just talk about this, first.  Alito wasn't the only qualified white man available, and if he was, there would probably be more criticism of him.  Also, Sotomayor is suffering the inevitable downfall of being a frontrunner this early in the process, which means a closer scrutiny.  The author in this article seems more focused on criticism than his own biases -- I expect him to treat the other potential nominees roughly in the same way, an aggregate collection of opinions [anonymously] gathered from their associates.  Obviously this isn't the most credible way to construct a narrative, but it's the only way in a case like this.

[Landslide Lyndon]

What I find most hilarious is the accusation that she has an inflated ego.

Because as we know the members of the US Senate and the Washington press corps are all of them the living embodiments of humility and modesty.

[??????????]

The court is not, nor was ever meant to be a representative body.

It is good for our democracy and society for it to be representative,

Firstly, we're not a democracy and secondly the point of the court is to interpret the Constitution and determine whether laws that are challenged are constitutional in nature. The point of the court is NOT to give social justice to so called "repressed" groups of individuals.

[Brittain33]

Firstly, we're not a democracy and secondly the point of the court is to interpret the Constitution and determine whether laws that are challenged are constitutional in nature. The point of the court is NOT to give social justice to so called "repressed" groups of individuals.

Members of a privileged majority can err in interpreting the Constitution to favor them and disregard the impact of laws on the constitutional freedoms of minorities, as with Dred Scott (a case many pro-life people criticize, despite it coming from an all-male, all-white court) and Plessy.

Wouldn't you agree that having minority representation on the Supreme Court in the 1850s, while historically anachronistic and impossible, would have helped avoid the Dred Scott case, which many of your allies consider a forerunner of Roe v. Wade?

[Lunar]

Wow I didn't realize Pam Karlan was openly gay.  Politico is headlining that fact right now.





It's fun to out people, good job Politico!

[Lunar]

 "(1) brilliant, (2) broadly knowledgeable — Cass Sunstein aside, I can’t think of anyone who knows so much about so many different legal fields — and (3) a spectacularly gifted writer" from a right-leaning Harvard Law professor, William Stuntz.



http://www.law.upenn.edu/blogs/dskeel/archives/2009/05/pam_karlan_and_souters_seat--s.html

[Kaine for Senate '18]

An interesting dark horse to consider is Senator Mark L. Pryor of Arkansas.  He served as Arkansas Attorney General, will vote for Obama's agenda, and, most importantly, is only 46 years old.

[they don't love you like i love you]

An interesting dark horse to consider is Senator Mark L. Pryor of Arkansas.  He served as Arkansas Attorney General, will vote for Obama's agenda, and, most importantly, is only 46 years old.

He's pro-life. Obama isn't going to appoint someone just to give you more Moderate Hero "OMG, I love the south!" material to jerk off to, sorry.

[Kaine for Senate '18]

He's pro-life. Obama isn't going to appoint someone just to give you more Moderate Hero "OMG, I love the south!" material to jerk off to, sorry.

I remember him syaing that he would not vote to overturn Roe v. Wade.  Of course, if he would overturn Roe, then he shouldn't be appointed.

[TheresNoMoney]

I bet that Obama will pick someone no one is talking about.

[Purple State]

I bet that Obama will pick someone no one is talking about.

Probably, but it's still fun to speculate.

[Lunar]

I bet that Obama will pick someone no one is talking about.

I'm trying to pimp the lesser known choices [*cough* Karlan] for that reason.

Hey, I won with Gillibrand, I'm trying to get my batting average up to 10%!

[Lunar]

Few outside the White House know whether the Sotomayor chatter is based on anything other than her popularity among center-left jurists, although her name has been the subject of conversation among some top officials recently. Sotomayor is seen as a compassionate voice for the underprivileged, and she has a solid, if unspectacular, record of jurisprudence. (For that reason alone, I don't know if she'll make the short list; Obama seems to go for the superlatives.)

Conservative talk radio hosts have begun impugning Sotomayor's credibility. And the respectable intellectual center -- see Jeffrey Rosen's case against her temperament and inherent intellectual abilities -- is beginning to have doubts.

...
There's a defense of Sotomayor somewhere out there -- her family history, stories of personal compassion, her best rulings -- but no one is making it. And for those who want Obama to nominate Sotomayor, that's a mistake.

The White House remains in lockdown over the nomination. They're not floating trial balloons. The pat responses from the White House about the qualities Obama wants in a nominee are not about selling any particular nominee. So the White House is not defending any prospective choice.

If Sotomayor loses control of her public image before her nomination, then liberal groups will have trouble in the months ahead. Obama's nominee will probably pass through the Senate fairly easily, but a discredited nominee -- even though she might make it to the Court -- will not. A Supreme Court fight is bound to energize liberals. 

Based on prior practices, if there is any political calculation involved at all, Obama wants to avoid energizing conservatives. He'd prefer to enervate them. Of course, finding an unimpeachable nominee who is acceptable to the left and doesn't light a fire under the right is difficult.

http://politics.theatlantic.com/2009/05/we_should_chat_scotussotomayortnridentity_politicsvetting.php

[Kaine for Senate '18]

Claire McCaskill would be an interesting choice; she's 56 years old, served as Jackson County Prosecutor from 1993-1999, and is pro-choice.

[Lunar]

I expect Obama to select an expert on the Constitution, not just anyone that's passed the Bar

[Torie]

I expect Obama to select an expert on the Constitution, not just anyone that's passed the Bar

That sounds like a law professor to me. How many judges are experts on the Constitution? 

[Lunar]

I expect Obama to select an expert on the Constitution, not just anyone that's passed the Bar

That sounds like a law professor to me. How many judges are experts on the Constitution? 

lol.

[Landslide Lyndon]

http://www.salon.com/opinion/greenwald/2009/05/05/tnr/

The last update by Greenwald just goes to show how deviously dishonest was Rosen's article.

[Lunar]

http://www.salon.com/opinion/greenwald/2009/05/05/tnr/

The last update by Greenwald just goes to show how deviously dishonest was Rosen's article.

That's a good article that everyone who read the original article should also read, but I wouldn't be "deviously."

Yet the article accurately explains why Rosen encountered such a preponderance of negativity towards her from people who encountered her...

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seems to contradict this

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Is she uncommonly aggressive, or not?  If she is, then, as he pointed out, a lot of people probably are upset with her because of her temperament.

[Purple State]

That article seems to state that she is just as aggressive as any other strong justice. The final update on that article is very interesting:

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[Lunar]

I saw that, I think the insinuation is a bit dirty but interesting.  Rosen implied that this piece was the first of several that are going to skewer and profile all of the leaders, so I assume that will include Kagan and that Sotomayor got profiled first because she's the frontrunner.

Obviously anyone that goes from the South Bronx to Princeton is pretty smart, so I don't think that's in question.  What I'm probing is this question:  Should Obama pick anyone that isn't already known to be a brilliant Constitutional legal heavyweight?  Not that this was the standard used for other [I should say: white, male] justices.


Here, to be fair:

http://www.concurringopinions.com/archives/2009/05/the_case_for_so.html

"The Case for Sotomayor"

Now I could spend plenty of time telling you what a terrific person the Judge is, but that is not the object of Rosen's criticism. (Or, more accurately, the criticism of various anonymous folks-- what courage they have!) First, Rosen relates the view that "she is kind of a bully." (This is the same charge that Laura Ingraham made yesterday on Fox News Sunday.) That is completely false, unless bully is some kind of new code for "asks probing questions." One one occasion I sat through a jury trial that the Judge presided over where the lawyers on both sides were very green. While I could tell that she was perplexed by their performance, she was unfailingly courteous to them. After the trial was over, she invited them back and spent considerable time talking with them about trial strategy (she was a prosecutor for several years) to help them out in the future. I also observed her conduct of settlement negotiations (in her discovery management role) and saw how patient and effective she can be in that context, which I think will serve her well if she gets the Court appointment. With respect to appellate argument, I never saw anything but the best behavior from her, even in cases (and there were a few) where I did not agree with the position that she took or where the lawyers arguing before the panel were clueless. Accordingly, the idea that she does not have an appropriate judicial temperament is absurd. I would instead describe her as politically savvy.

Second, Rosen conveys the view that the Judge is "not that smart" or that her opinions are not "clean or tight." While I have not read every opinion she has written over the last seventeen years, once again this criticism is not at all consistent with what I know and with the opinions that I've read. The bottom line is that I have always been enormously impressed by her intellect, which is why I've always been eager to seek out her views on matters of professional concern. My academic interest in trademark law, for instance, got started from conversations that I had with her about her trademark practice when she was at her firm. It's difficult to give you a brief anecdote with the takeaway of, "Hey, she's really smart," but Rosen's collection of quotes sound like little more than sour grapes to me.

[Purple State]

Pending any grave misgivings that come up during the vetting process, I think it is likely she will make it at least as far as the personal meet with Obama. Let him be the judge of how savvy and powerful a mind she has. But it is clear from the articles I've read that this is completely up in the air.