David Souter Retiring, Obama gets to make first SCOTUS pick

[KSigkid]

Originally Posted by TexasWSP

"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,” said Judge Sotomayor"

switch some of those words around and people would go apeshit crazy.

I completely forgot about that quote. It was in response to a question about how Justices O'Connor and Ginsburg have said that a wise old man and wise old woman should reach the same conclusions in deciding cases. There was also a statement at a panel discusision for soon-to-be judicial clerks where she talked about how it's the job of appeals judges to make policy. Both are situations where she should have chosen her words more carefully, but I'm not sure that either will make a difference in the confirmation process.

One thing that bugs me about this; I think President Obama is making things slightly harder for her in that he keeps harping on her background and upbringing. I know it makes for good press with the public, but he should just stick to the fact that she's very smart and thinks well on her feet, has an excellent academic background, and has been a successful federal district and appeals judge. At the end of the day, those are the things that will be most important when she sits on the SCOTUS bench, and he's just setting her up for a ton of questions from Republicans about whether she'll let her personal experiences outweigh her respect for the law.

[MysticCat]

Originally Posted by KSigkid

I completely forgot about that quote. It was in response to a question about how Justices O'Connor and Ginsburg have said that a wise old man and wise old woman should reach the same conclusions in deciding cases.

The line is actually from the 2001 Judge Mario G. Olmos Memorial Lecture at UC-Berkeley School of Law. While I'd agree that the words could have perhaps been chosen a bit more prudently, here -- as is so often the case -- context is everything.

Here is part of the speech:

Now Judge Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then "as not capable of reasoning or thinking logically" but instead of "acting intuitively." I am quoting adjectives that were bandied around famously during the suffragettes' movement.

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. . . .

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

The entire lecture is much longer.

(And reading the whole thing, I'm not sure but what the line in question wasn't intended to get a laugh.)

[KSigkid]

Thanks for posting; the quote makes a lot more sense there, especially looking at the next paragraph - at the end of the day she's extremely qualified, and it will probably end up being a side note that's repeated ad nauseum throughout the confirmation hearings.

I love Supreme Court history and talking about the Court, but I absolutely hate the confirmation hearings.

[VandalSquirrel]

Originally Posted by KSigkid

Thanks for posting; the quote makes a lot more sense there, especially looking at the next paragraph - at the end of the day she's extremely qualified, and it will probably end up being a side note that's repeated ad nauseum throughout the confirmation hearings.

I love Supreme Court history and talking about the Court, but I absolutely hate the confirmation hearings.

I love Supreme Court Bobbleheads from the GreenBag. Brandeis is the newest one, I'd like to see Thurgood Marshall soon.

[Munchkin03]

Originally Posted by KSigkid

One thing that bugs me about this; I think President Obama is making things slightly harder for her in that he keeps harping on her background and upbringing. I know it makes for good press with the public, but he should just stick to the fact that she's very smart and thinks well on her feet, has an excellent academic background, and has been a successful federal district and appeals judge. At the end of the day, those are the things that will be most important when she sits on the SCOTUS bench, and he's just setting her up for a ton of questions from Republicans about whether she'll let her personal experiences outweigh her respect for the law.

I agree: I think I'm beyond bugged and it gets to be offensive. The person just ends up becoming a token.

I think well-intentioned liberals, egged on by the mainstream media, can't be faced with a liberal Black or Latino overachiever without putting the "up from the ghetto/barrio/sharecropper" story on them, whether or not it's true. When it's true, as seems to be the case with Sotomayor, I feel like it almost diminishes her accomplishments because her whole life story is condensed to that sound bite. When it's only slightly true, in the case of our President, it seems as if liberals and the mainstream media can't stomach the idea of a successful black or Hispanic person who came from an educated middle-class background. When it can't be applied at all, or if the politics of the person in general don't fit in with the mainstream media (case in point: Condolleezza Rice), it's not seen as an accomplishment at all. It's been annoying me for a little while now, and maybe the conservative press does it as well, so I'm just sensitive to it.

[UGAalum94]

Originally Posted by Munchkin03

I agree: I think I'm beyond bugged and it gets to be offensive. The person just ends up becoming a token.

I think well-intentioned liberals, egged on by the mainstream media, can't be faced with a liberal Black or Latino overachiever without putting the "up from the ghetto/barrio/sharecropper" story on them, whether or not it's true. When it's true, as seems to be the case with Sotomayor, I feel like it almost diminishes her accomplishments because her whole life story is condensed to that sound bite. When it's only slightly true, in the case of our President, it seems as if liberals and the mainstream media can't stomach the idea of a successful black or Hispanic person who came from an educated middle-class background. When it can't be applied at all, or if the politics of the person in general don't fit in with the mainstream media (case in point: Condolleezza Rice), it's not seen as an accomplishment at all. It's been annoying me for a little while now, and maybe the conservative press does it as well, so I'm just sensitive to it.

I probably wouldn't have said exactly that the media can't stomach the idea of successful black or Hispanic people with middle class backgrounds, but I agree that they oversell the up from nothing background story when the person's politics is correct. If you are conservative, forget it; it's just assumed that your were middle class or rich, it seems to me.

On the one hand, I'm a fan of giving Black and Hispanic kids successful people of originally meager means and similar ethnicity to look up to. On the other hand, why the love affair with people starting out poor? Sure, it's great when people overcome adversity, but how many of us are really born with silver spoons in our mouths? How many people in the last 50 years got to the level of Supreme Court nominee without having sincere personal accomplishments, Harriet Miers excepted?

I'd also, like those of you who've already said so, like to see people promoted and evaluated based on their accomplishments. I find the idea of using identity and ability for empathy kind of troubling standards in the judicial system, but Obama's been pretty open about using them.

[KSigkid]

Originally Posted by UGAalum94

I'd also, like those of you who've already said so, like to see people promoted and evaluated based on their accomplishments. I find the idea of using identity and ability for empathy kind of troubling standards in the judicial system, but Obama's been pretty open about using them.

The thing is, he's said that, but Sotomayor (as well as the other rumored nominees) is extremely qualified. Yeah, she may have the "ability for empathy," whatever that means, but she's also got one heck of a resume.

That's part of my problem, which I think was echoed by Munchkin - by focusing on these touchy feely things, it ends up seeling someone short who has the brains and professional background for the job (like Sotomayor). At the end of the day, the reason she is up for the spot is mostly because of her accomplishments.

[UGAalum94]

Originally Posted by KSigkid

The thing is, he's said that, but Sotomayor (as well as the other rumored nominees) is extremely qualified. Yeah, she may have the "ability for empathy," whatever that means, but she's also got one heck of a resume.

That's part of my problem, which I think was echoed by Munchkin - by focusing on these touchy feely things, it ends up seeling someone short who has the brains and professional background for the job (like Sotomayor). At the end of the day, the reason she is up for the spot is mostly because of her accomplishments.

[Edited to reflect my re-reading what you all said]

I honestly have no opinion about her experience. I don't know much about her. I'm not nearly as into SCOTUS (or courts generally) as you are. My general impression as a conservative is that there were far worse judges out there and she's going to be confirmed so let it ride.

Rather than "ability for empathy,"Obama's words, according to a NYT column were, “'I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives.' That kind of judge, Obama explained, will have empathy: “I view the quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient fo arriving at just decisions and outcomes.'” (I googled and used this because it's quoted in the NYT; I haven't even read the whole column it's quoted in:http://fish.blogs.nytimes.com/2009/0...w/?ref=opinion)

I think he's set her nomination up to be framed that unfortunate way for sure, but there's a big part of his base, as Munchkin notes, that's into that.

[Munchkin03]

Originally Posted by UGAalum94

If you are conservative, forget it; it's just assumed that you were middle class or rich, it seems to me.

I'd also, like those of you who've already said so, like to see people promoted and evaluated based on their accomplishments. I find the idea of using identity and ability for empathy kind of troubling standards in the judicial system, but Obama's been pretty open about using them.

I don't really remember anyone back in 1991 playing up Clarence Thomas's background when it's just as humble, if not more so, than Sotomayor's. There's a double-standard for sure, but it's also probably based on the fact that GHWB's base wasn't into the "back story" the way that many liberals are.
The fact that he was a good jurist was enough for the GOP back then--why isn't it for the left wing today?

[MysticCat]

Originally Posted by Munchkin03

I don't really remember anyone back in 1991 playing up Clarence Thomas's background when it's just as humble, if not more so, than Sotomayor's. There's a double-standard for sure, but it's also probably based on the fact that GHWB's base wasn't into the "back story" the way that many liberals are.
The fact that he was a good jurist was enough for the GOP back then--why isn't it for the left wing today?

I wouldn't go so far as to label it a double-standard -- I remember personal background and the rise from humble beginnings being talked about quite a bit for Thomas as well.

Nor would I call it a conservative vs liberal thing, necessarily. Way too tidy.

It has only been 48 hours or so since the news broke. It's premature to start comparing the coverage of Sotomayor to that of Thomas (or anyone else) unless you're going to limit the comparison to the first 48 hours of coverage on Thomas. In those first few days, media-types haven't necessarily had time to pour over her decisions to get a feel for her jurisprudence, so they focus on what they can talk about quickly -- background and personal story. Meanwhile, when Obama talks about the "empathy" factor, he is talking in terms of jurisprudence, not just "what a great story."

Whether background and personal story will continue to occupy the media's attention through the confirmation process remains to be seen.

[Eclipse]

Originally Posted by MysticCat

I wouldn't go so far as to label it a double-standard -- I remember personal background and the rise from humble beginnings being talked about quite a bit for Thomas as well.

As do I. There was much talk about him 'pulling himself up by his bootstraps' leaving the segregated south (some small town in SE GA near Savannah--can't remember the name) to go to school in the North, etc. And if I remember correctly he was totally or partially raise by a single parent with the help of his grandfather who was uneducated. The somewhat unspoken narrative I remember was "see, black people can be against affirmative action (even if they were helped by it)!" Of course that was until Anita Hill came along and then all bets about his background were off. Then it was all 'high tech lynchings' and such.

[TonyB06]

Originally Posted by Eclipse

As do I. There was much talk about him 'pulling himself up by his bootstraps' leaving the segregated south (some small town in SE GA near Savannah--can't remember the name) to go to school in the North, etc. And if I remember correctly he was totally or partially raise by a single parent with the help of his grandfather who was uneducated. The somewhat unspoken narrative I remember was "see, black people can be against affirmative action (even if they were helped by it)!" Of course that was until Anita Hill came along and then all bets about his background were off. Then it was all 'high tech lynchings' and such.

You're right. And the town was Pin Point, Ga.

This choice, as are all presidential SC choices, is by definition, political. In addition to the president's ideas about what a justice should bring to judicial decision making, the choice also plays to audiences particularly important to continuing Democratic consitutencies (Hispanics, women) and puts his political ememies, at least initially, in a quandry as to how to attack.

It's the same thing Bush41 did with then nominee C. Thomas -- remember how conflicted the NAACP was in whether they should oppose the nomination in filling what was then considered to be "Marshall's seat" on the court?


...and for the record, Eclipse, you have been gone waaaaaaaaay too long from around these parts. Any updates on what you have been doing (minus the unneccesary shots at Skyline Chili) would be greatly appreciated.

[KSig RC]

Originally Posted by Munchkin03

I don't really remember anyone back in 1991 playing up Clarence Thomas's background when it's just as humble, if not more so, than Sotomayor's. There's a double-standard for sure, but it's also probably based on the fact that GHWB's base wasn't into the "back story" the way that many liberals are.
The fact that he was a good jurist was enough for the GOP back then--why isn't it for the left wing today?

The issue with Thomas was that he was NOT a good jurist - at least, there was a significant chance that he wasn't, according to both the ABA and the general concept of precedent (which he's not particularly fond of). His background got play, but was quickly washed under by the spectacle of his confirmation hearings - and not just Anita Hill.

I'll grant that the backstory probably plays better with DNC-aligned audiences, but it's still generally compelling, and the only 'downside' is that it allows the RNC to really strike using stereotyping and innuendo, which isn't exactly a perfect, no-fail strategy considering how much the Republicans need Hispanics going forward.

[Munchkin03]

Originally Posted by KSig RC

The issue with Thomas was that he was NOT a good jurist - at least, there was a significant chance that he wasn't, according to both the ABA and the general concept of precedent (which he's not particularly fond of). His background got play, but was quickly washed under by the spectacle of his confirmation hearings - and not just Anita Hill.

I'll grant that the backstory probably plays better with DNC-aligned audiences, but it's still generally compelling, and the only 'downside' is that it allows the RNC to really strike using stereotyping and innuendo, which isn't exactly a perfect, no-fail strategy considering how much the Republicans need Hispanics going forward.

You're absolutely right that Thomas, going in, was clearly not a brilliant legal mind. I did want to point out that, at the very least, he was somewhat qualified for the position; I don't remember GWHB going on and on about his background the way that the disciples of Obama are about Sotomayor. I definitely remember the stories about his having to learn standard English after years of speaking Gullah, but this information didn't make up his entire story for the first 48 hours of the news cycle. I think that the mainstream media is more skeptical about conservatives of color, and that leads to less fawning like we're seeing now.

Granted, I think I'm a little tender about this sort of thing, and as a result am probably a little less than coherent, since the first thing I heard from my liberal colleagues was her background. Why do I care? As a person of color, I could give two ishts about what color or gender the next Supreme Court justice is, or how they grew up.

[a.e.B.O.T.]

I find this conversation rather odd... I think we should publicize stories of those who rise from unlikely situations into one that is making an impact on society. If she becomes the next SCOTUS member or not, it is great representation for those individuals out there who feel like they are stuck in their economic situation. I remember working at a grocery store, and hearing a girl talk about how she needs to have a baby soon so that she will qualify for welfare. To me, this seems like a defeatist attitude that a lot of disadvantages kids take. So any story that shows that they are not stuck in their current situation, I am definitely fond of. I think that is why Obama was hitting on the story, as education, and instilling drive within today's students has definitely been consistent with his actions so far.

Now whether or not it affects the senate's vote to confirm her, I think that is more of a problem of if we elected the right senators who can look past media biased and onto the pure facts at hand...