05.28.09

Closing the Case Against Sotomayor

Three lines of attack have been outlined against Sonia Sotomayor: The Princeton and Yale Law graduate is dim, a product of affirmative action and a reverse-racist. The Daily Beast’s Scott Horton debunks each one.

Three lines of attack have been outlined against Sonia Sotomayor: The Princeton and Yale Law graduate is dim, a product of affirmative action, and a reverse-racist. The Daily Beast’s Scott Horton debunks each one.

Plus, more Daily Beast contributors react to Sotomayor's nomination.

The rough outline of the case against President Obama’s nominee for the Supreme Court, Sonia Sotomayor, has emerged in the first 48 hours. The major lines of attack, their sources, and her most controversial prior opinions, speeches, and public appearances are now apparent.

What we see so far raises little serious risk of derailing her nomination in a Senate with 59 to 60 Democratic votes. That makes it unlikely that Sotomayor will face a filibuster or even a particularly difficult time in the Judiciary Committee. Senator Chuck Grassley (R-IA) is already predicting her confirmation.

“I know lots of stupid people who went to Ivy League schools,” said Karl Rove, the political adviser to Yale- and Harvard-educated George W. Bush and himself a University of Utah dropout.

The attacks on Sotomayor can be grouped in three categories:

(1) She’s “not so smart.” The most frequently reiterated charge follows in the wake of Jeffrey Rosen’s article in The New Republic. Rosen’s piece contained the charge that Sotomayor was “not that smart and kind of a bully on the bench,” a line which has reverberated in the media ever since. Rosen’s George Washington University Law School colleague Jonathan Turley chimed in, insisting that he had reviewed more than 30 of Sotomayor’s opinions and found that they lacked the “depth” he would expect of a good Supreme Court nominee.

But both Rosen and Turley have been quick to add since Sotomayor’s nomination that she is well qualified to be a High Court justice and that they would support her. Nonetheless, their words provided fodder for far-less-kind comments from the right. To begin with, Karl Rove echoed that she was “not necessarily” very smart. “I know lots of stupid people who went to Ivy League schools,” said the political adviser to Yale- and Harvard-educated George W. Bush and himself a University of Utah dropout. Curt Levy of the movement conservative Committee for Justice said that Sotomayor was “not that smart and kind of a bully on the bench.” At National Review online, Ramesh Ponnuru calls the nominee “Obama’s Harriet Miers,” a conservative sneer, while on Fox News, The Weekly Standard’s Fred Barnes said that she was “not the smartest.”

The assault on Sotomayor’s brainpower will be difficult to sustain. All of the charges build off Rosen’s work and misrepresent it. In fact the criticism that Rosen and Turley present is essentially a matter of judicial style—Sotomayor was tough on lawyers who appeared before her and was known for clean, logical, and simply structured opinions—not the rather more literary products that might excite a law professor. Adam Liptak, writing in The New York Times about her opinions characterized them with more detachment: “Judge Sonia Sotomayor’s judicial opinions are marked by diligence, depth, and unflashy competence. If they are not always a pleasure to read, they are usually models of modern judicial craftsmanship, which prizes careful attention to the facts in the record and a methodical application of layers of legal principles.” Conservative commentator Hugh Hewitt rejected the attack properly noting the risks it presented for the Republicans: “The judge is obviously a bright and accomplished professional with an enormously appealing personal story which resembles that of Justices Thomas and Alito.”

The assault on Sotomayor’s intelligence, moreover, can’t be squared with her record. She graduated second in her class at Princeton University and went on to Yale Law School, where she was a law-review editor—a position granted on a keenly competitive basis to the most intellectually brilliant students. Her track record in this regard is an almost perfect match of her rough contemporary, Samuel Alito—except that her academic performance at Princeton clearly exceeded his. Yet Alito was presented as an intellectual dynamo for the court.

(2) She’s an “affirmative-action candidate.” Pat Buchanan, appearing on MSNBC’s Hardball, argued that Sotomayor was picked “because she’s a woman and an Hispanic.” Rush Limbaugh (Southeast Missouri State dropout) proclaimed, “She is an affirmative-action case extraordinaire.” The argument is intended to counter Sotomayor’s compelling up-from-poverty life story by suggesting that she succeeded as a result of benefits she got as a Latina.

But, once again, this argument is belied by Sotomayor’s record. Her graduation at the top of her class was at one of the nation’s most elite universities where grading occurs on a blind basis. The complaint is instead an assault on Obama’s priorities and the fact that the entire pool of known candidates consisted of women. But of course women are a majority of the population and the Supreme Court currently has only one female justice out of nine.

(3) She’s a “racist” or a “reverse racist.” The most excited attacks on Sotomayor have been based on a speech she gave at the University of California at Berkeley in 2002. To understand her statement, here are her remarks in context as later reproduced in a student publication:

“Judge Cedarbaum... 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. Whatever the reasons... 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....

“Our experiences as women and people of color affect our decisions. 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....

“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 that I agree with the statement. First... 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.

A number of commentators have taken the last line as evidence that Sotomayor is prejudiced against white men. Stuart Taylor, writing in National Journal writes: “Do we want a new justice who comes close to stereotyping white males as (on average) inferior beings? And who seems to speak with more passion about her ethnicity and gender than about the ideal of impartiality?” Rush Limbaugh put it more stridently: “Here you have a racist—you might want to soften that, and you might want to say a reverse-racist.” Former House Speaker Newt Gingrich issued a message on Twitter: “Imagine a judicial nominee said 'my experience as a white man makes me better than a Latina woman' new racism is no better than old racism. White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw."

Sotomayor’s “hope” that a Latina woman would decide cases better than a white man provides some grist for these charges. But the remarks taken in context do not. They are her contribution to a very old discussion about diversity: whether a judge’s life experiences, including the milieu in which she was raised, affect her decision-making process. At this point it is a well-accepted scientific fact that background does affect a judge’s decision-making process. One of the arguments flowing from this thinking, anathema to social conservatives, is that a democratic society is best served by judges that reflect a diverse society as a whole. The Supreme Court, which has been a bastion of white men throughout its history, is a favorite target for these critics. And white men (like Taylor and Limbaugh) apparently feel threatened by the argument.

Curiously missing from the lineup of charges so far are the hot-button culture-war issues that have been critical for other recent Supreme Court test cases: abortion, gay marriage and flag-burning, for instance. These issues may well surface at some point in the future. Only the affirmative-action question, raised indirectly in the case of firefighters in New Haven, Ricci v. DeStefano, is likely to get play at hearing time.

So far the Sotomayor nomination has given conservative groups a chance to flex some muscle within the party and engage in fundraising. They are able to use themes that have been long developed by Limbaugh and Glenn Beck that present white males victimized by systematic social preferences in favor of minorities. While this demagogy may energize a base group on the right, it presents considerable risk for the party’s “big tent” strategies of attracting others.

The Obama White House would probably like nothing more than a confirmation fight premised on Sotomayor’s candidacy as a Latina. Democratic strategy has focused on painting the Republicans as an increasingly regional party of white males. Hispanics have historically been a promising group for Republicans. (Bush got 44% of the Hispanic vote in 2004, decisive for his re-election). But 2006 and 2008 saw progressive erosion in Hispanic ties to the GOP, its support faltering even among groups like Cubans of South Florida. Demographic trends in the Southwest make the role of Hispanics vote more important. Historically Republican bastions like Arizona are now within reach for the Democrats, and shifts suggest that even Texas, the last reliably Republican large state, may soon be competitive. This explains why many Republican officeholders are reticent about attacking Sotomayor, and particularly concerned about the tools used in any attack. It would be one thing to attack her judicial philosophy, but attacks on her character as a Latina may well boomerang. A bloody confirmation attack on Sotomayor would doubtless help the Democrats seal their bargain.

Unquestionably, Barack Obama was wowed by Sotomayor’s intelligence, temperament, and mastery of constitutional doctrine, but her implicit political appeal and danger to Republicans also could not have escaped him.

Xtra Insight: More Daily Beast contributors react to Sotomayor's nomination.

Scott Horton is a law professor and writer on legal and national-security affairs for Harper's magazine and The American Lawyer, among other publications.