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The Sonia I Know
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The bestselling author—and her former law-school classmate and editor—on why he's been rooting for her nomination all along.
Plus, more Daily Beast contributors react to Sotomayor's nomination.
Judge Sonia Sotomayor has a wonderful poker face.
A couple of months ago, we were on a panel together, talking about, of all things, the nomination and confirmation of federal judges. At this time there were not, yet, any vacancies on the Supreme Court. Nevertheless, at the start of my remarks, I turned toward the judge and remarked that I hoped I would soon be addressing her not as “Judge Sotomayor” but as “Justice Sotomayor.”
She never even smiled.
Now that President Obama has wisely chosen Judge Sotomayor as his first nominee to the Supreme Court, I suppose I should let the cat out of the bag: I have been rooting for her all along. Not only because I know her, but because everything I know about her suggests that she will be a fantastic justice.
I teach a couple of her decisions in my intellectual-property courses, because they are scholarly, clear, and fair-minded.
I have known her since we were law students together at Yale, back in the ‘70s. We worked at the same law firm over the summer, and I edited her note for the Yale Law Journal, a thoughtful piece of scholarship in which she did a fantastic job of navigating between two extremes to find a plausible and pragmatic and by-no-means-obvious answer on a difficult and even abstruse question of constitutional law: the “equal footing” doctrine for the admission of new states to the Union.
Around the United States Court of Appeals for the Second Circuit, Judge Sotomayor has developed a reputation as a thoughtful moderate, with liberal leanings, to be sure, but hardly a firebrand on a mission. She also writes excellent opinions. As a matter of fact, I teach a couple of her decisions in my intellectual-property courses, because they are scholarly, clear, and fair-minded.
I suppose the left will not be entirely happy with the president’s choice, and the right, not entirely unhappy. Sotomayor is a former prosecutor, and her criminal-law decisions as an appellate judge seem to me to have a bit of a pro-prosecution bent. For example, her position in United States v. Santa, allowing the admission of evidence seized by the police in the course of a mistaken arrest, eventually was adopted by the Supreme Court.
On the other hand, her participation in Ricci v. DeStefano, the controversial case involving the New Haven Fire Department, is already being waved as if it were a red flag. It isn’t. Ricci (which in any event will be decided by the Supreme Court any day now) involved the decision of the City of New Haven, Connecticut, to throw out a promotion test after not a single black applicant passed it. Black applicants were more than one-third of the pool, and the city was terrified of being sued for racial discrimination. It was, but by the test takers who passed. Maybe New Haven overreacted; maybe not. Few issues have proved as difficult for the nation to resolve as overcoming the lingering legacies of slavery and racial discrimination. How precisely we do that, when we see the results manifest, remains perhaps the greatest moral challenge to America and Americans. People of good will can hold more than one position. To pretend, as some already are, that Judge Sotomayor’s position is outside the mainstream is absurd.
John Talks Joe
Lloyd Grove is editor at large for The Daily Beast. He is also a frequent contributor to New York magazine and was a contributing editor for Condé Nast Portfolio. He wrote a gossip column for the New York Daily News from 2003 to 2006. Prior to that, he wrote the Reliable Source column for the Washington Post, where he spent 23 years covering politics, the media, and other subjects.
The Right Dumps Carrie
Jacob Bernstein is a senior reporter at The Daily Beast. Previously, he was a features writer at WWD and W Magazine. He has also written for New York magazine, Paper, and The Huffington Post.
Give Obama a Break
Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. His seven non-fiction books include God’s Name in Vain: The Wrongs and Rights of Religion in Politics and Civility: Manners, Morals, and the Etiquette of Democracy. His first novel, The Emperor of Ocean Park (2002), spent eleven weeks on the New York Times bestseller list. His fourth novel, Jericho’s Fall, will be published in July.
Running for Her Life
Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. His seven non-fiction books include God’s Name in Vain: The Wrongs and Rights of Religion in Politics and Civility: Manners, Morals, and the Etiquette of Democracy. His first novel, The Emperor of Ocean Park (2002), spent eleven weeks on the New York Times bestseller list. His fourth novel, Jericho’s Fall, will be published in July.
Sonia's Batting Average
Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. His seven non-fiction books include God’s Name in Vain: The Wrongs and Rights of Religion in Politics and Civility: Manners, Morals, and the Etiquette of Democracy. His first novel, The Emperor of Ocean Park (2002), spent eleven weeks on the New York Times bestseller list. His fourth novel, Jericho’s Fall, will be published in July.
Leviticus 19:15 Don't be corrupt when administering justice. Never give special favor to poor people, and never show preference to important people. Judge your neighbor fairly.
Sotomayer is an absolute disaster of a nominee and I fervently hope that FOR ONCE the Senate will do what is best for the country instead of what is best for their political careers. She is a hack and is overturned 80% of the time. She believes that political appointed judges can and should legislate from the bench. She does not fully understand or believe in the Constitution she would be sworn to protect. She believes in REVERSE Discrimination..so she is a racist basically but since she was nominated by a very racist president we should not be surprised.
"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt."
-Thomas Jefferson to Edward Livingston, 1825. ME 16:114
Sotomayer is a danger to the US Constitution she frequently and publicly has rejected. She wants to create law from the bench not interpret law from the bench. Our entire system of Government is at risk.
Every Supreme Ct. Justice has at one time or another "created" policy, it's inevitable. Even Scalia knows and has done this. Perhaps you should do a little more jurisprudence research before you make ignorant statements like "Our entire system of Government is at risk".
Oh, please. Hysterical statement with absolutely no explanation or facts to back it up. Give it a rest already.
Sir you are absolutely delusional you might try reading the body of work of Her Honor Sotomayor J. before you make hyperbolic comments, the only controversial decision she has made and written an opinion on was the new haven case and that was an opinion for the majority of her Circuit court en banc and was based not on any new ground but on stare decis (past decisions) of her circuit. This was not necessarily her view but a consensus opinion that the judges agreed to agree to.But wait now i get it you must be one of the angry MLB club owners she ripped a new A hole for violating the NLRB act.
If our entire system of government is ever at risk it will undoubtedly be, at least in part, because of hyperbolically inaccurate, ad libitum, declarations of what the truth is sapping and mining slyly and without alarm the foundations of reality... "Our entire system of government is at risk"!!!! You need to get back on your meds, buddy.
This, of course, is what the Republicans will be saying (and shouting and whispering) in as many venues are they will be able to get to. It is their 'talking points' and I see that Dencal26 got them early.
If you would ever look at Sotomayor's actual record (which I am just beginning to check out), you would NO evidence of her every rejecting the Constitution. On the contrary, she has said in multiple places and in many ways the exact opposite.
It won't work! I see more risk to our system of Government in people like you (whoever you are) and your ilk!
"Few issues have proved as difficult for the nation to resolve as overcoming the lingering legacies of slavery and racial discrimination".
I have always had a hard time verbalizing this concept - I hope that you don't mind, but I am going to borrow this phrase.
Thank you for your precis of a couple of relevant rulings. I now realize that this is the kind of information that I would like to know more about. I am going to send an email to "Organizing for America" - for more of the same.
Oh - the NYT have a good summary: http://www.nytimes.com/interactive/2009/05/26/us/0526-scotus.html
But I want more!!!!
Look at SEC unable to prevent Madoff from robbing the investor community.
When you think about it, the law only matters when it is being enforced.
Most crimes are an outcome of opportunity, not bad laws or good laws, but an outcome of the opportunity the criminal has to do what he does.
The law is very clear relating to how Madoff wronged his victims, what is not clear is how he got away with it for so long. You can't blame judges for that.
I know from experience we are told to be passive, accept fate, what will happen will happen. And we know perfectly well having access to personal power is about the opposite, having access to control quality. Madoff had all the power, all the control. The judge can shake his head and throw away the key, but it still doesn't help in finding out how Madoff was allowed to get away with his crimes for so long.
Dencal 26/Youwot
you people are so transparent - maybe even the same person - you are talking to each other
If you are truly interested it is easy enough to Google Judge Sotomayor's decisions. She is actual a centrist. She was following 2nd circuit president in the Ricci case -
The bottom line is that until the uber Republican right realizes they can no longer bamboozle people with sound bites the party will continue to have problems
It would be so much smarter to deal in facts and not underestimate the public and their ability to assimilate complex issues
The lack of depth of GWB forced the people of america to find their depth - being broke and at war are compelling reasons to search for facts and truth here on out
Judge Sotomayor will e confirmed. If the republican party wants to continue to be a party of old white men - keep it up
Personally I think this country needs a two party system - too bad the republican party is two party's all by itself -- schizophrenia is not an appealing quality for leadership
This is the WRONG fight to pick- they know they will lose so why alienate women and latinos in this?
senseless
dumb
leaderless
You what????
I am certainly not Dencal 26 - and from what I have understood from his/her post - our positions are diametrically opposite.
Althougn you mentioned the New Haven case, you failed to mention that she threw out the case without comment. She at a minimum deserved explanation for her reasons.
She also said that appeals courts "make law", then tried to backtrack. It really gives an insight into her perception of the court. Any first year student knows courts are not suppose to make law.
Imagine if a white man implied that they make better judicial decisions because of their gender and race, as SHE did....whoa nellie. I see you have no comment on that!
The sad reality is that she's right and your first year student is not - They have unlimited and unchecked power. And in this country judges make law.
I am coming to the same conclusion myself. And considering that, over the past 40 years, there have never been more that 2 justices sitting on the bench at anyone time who have been appointed by a democratic president, I can see the point of Campos' term limits.
The sooner Roberts, Scalia and their ilk go the better. Those guys are toxic.
Let's just go for a big one. Brown vs. Board of Education was a supreme court ruling that 'Separate is not Equal" and led to the policy of desegregation. I'm quite happy with that one.
On the other hand, Montejo v. Louisiana, which came through yesterday - will lead to a policy that will make the most vulnerable members of society (one's that do not know how to insist on their rights) even more vulnerable within the justice system. I definitely don't like that one.
By their very nature, in interpreting the law, courts make policy. One might not like all of the policy that create - but one shouldn't deny the reality.
Obama said, "Well, Sonia, what you've shown in your life is that it doesn't matter
where you come from, what you look like or what challenges life throws your way,
no dream is beyond reach in the United States of America."
>> It doesn't matter where you come from???
Obama chose her SPECIFICALLY because she was a (liberal) woman and a Latina!
Did he lie or bamboozle?
She has excellent academic records, graduating from Yale and Princeton at the top of her class. She also brings to the Supreme Court more trial experience than any of the current sitting justices. If you get to know her qualifications, you would not be questioning her nomination. And oh yes, she is a woman which everybody says is needed and a Latina with a compelling life story as well. Why can't people give her the benefit of the doubt, learn more about her before assuming that she only got the nomination because she is hispanic. And don't just listen to Limbaugh, we all know he will twist information to pander to the GOP base.
>
Admit it,
you agree with Sotomayor just because Obama nominated her.
You do not yet know what criticisms will found.
I have already heard that some of her rulings were VERY questionable.
The Supreme Court demands a top-rate constitutional mind,
not just someone who fits the admin's political profile!
<
Gosh I hate identity politics. Anyway, I wish all would stop treacting to the sound bites from the right and the left. The media on both sides loves the sound bite cuz it allows them to portray folks they way they want to - e.g. Dick Cheney devil and hero. Judge Sotomayer's competency can't be assessed from selected clips cut from an entire event. Or based on rulings without reading them in their entirety.
She has written of the struggle to be impartial in addition to her comments about a 'wise latina' making a better decision. Frankly, having only heard/read clips- I agree if she's trying to convey that we will be influenced by our backgrounds. If impartial meant that all judges would read and apply the law the same way, we wouldn't need multi-judge appeals courts like SCOTUS. Her 80% overturn rate shows that higher courts don't agree with her - but if most of those opinions were joint opinions with other judges she wasn't alone.
I'm a strict constructionist, the constitution means what the original authors intended it to mean. I oppose the concept of changing the meaning in the context of the times because it in effect renders the document meaningless.
However, I refuse to go along with praising or condemning someone on initial media reports from either side.
Stephen Carter, Barack Obama and Sonia Sotomayor all share in common a racism that they benefited from and feel entitled to. It should be surprising that racism continued in her dismissal of a case where a city denied promotions to white fireman and a latino fireman because the black fireman could not pass the test they all passed twice. People who vote on the basis of skin are racists. People who say that one group or race can decide better than another are racists. People who say they will exclusively buy from one race are racists. People who set up scholarships for one race are racists and people who have benefited from a system wherein they got into Ivy League schools who abandoned meritocracy who pretend now that they earned it in the same way are racists and hypocrites.
She is the worse possible candidate imaginable. Her nomination is pandering in its lowest form. Now the entire country will be infected with her form of "empathy". Before at least the poor sods living in her jurisdiction could leave.
Where are the facts, where are the explanations? The right-wing hate machine is at it again...
No kidding...they were ready to attack even before the nomination was made. People all seem to assume the worse.
Hyperbole, anyone?
'Worse possible candidate imaginable"???? Really - I can certainly imagine many, many worse candidates!
Actually, if you ever actually examined her or her record you will quickly see that she is actually a very good candidate - maybe even the BEST possible one! But you won't look at the record, you will wait to get your talking points from Rush Limbaugh. Too bad! Looks like you are the worse possible candidate imaginable from whom to get the truth.
"The worst possible candidate imaginable?" In that case, why don't you name one of the other front runners that you would have preferred: Diane Wood, Elena Kagan, Jennifer Granholm, for instance. I'll bet you would have liked them even less. I think that your comment shows a severe lack of imagination, as well as a tendency to thoughtlessly parrot what you hear on the radio.
I'm sorry, Professor Carter, but who should you believe: you, who actually have known her for decades, or the people at, oh, www.Townhall.com, who already know that she is "someone who actively flaunts the Constitution every chance she gets"?
I was turned off when I first heard about her decision on the Ricci case -- but then in reading a little more on the topic, came to understand that a law is on the books about racial quotas and the power to throw out test scores for local government employees if certain results are not realized. You may not agree with that law (personally, I don't), but it has been in effect for a while. I'm not a lawyer, and so can't articulate exactly what it said -- but suffice to say, she was applying the law, not pushing her personal opinion. Sounds like the opposite of an activist judge to me.
The problem people have with the Ricci case is not that it's "outside of the mainstream". Of course Sotomayer is in the mainstream in her opinion that New Haven had a right to throw out the promotions. That's just it--we have been spending so much time using race-based qualifications for jobs, education, etc. in order to make up for the sins of slavery, Jim Crowe, etc., that we have not made room for or considered the potential problems with this for the future. Because no black firefighters passed that test, it was assumed that this was due to...what? The test being racist? The black firefighters being "disadvantaged"? Eventually, especially as we have a black man as the most powerful person in the world, and the country's leadership will only continue to come from minority populations more and more, these assumptions of disadvantage will become more and more problematic. The fact is, the white firefighters were denied promotions based strictly on their race and based on the assumption that they passed the test due to the very ambiguous notion of white privilege (not taking into account class, immigrant status, sexual orientation or anything else). Might seem relevent today, but what about tomorrow? What happens when power among races shifts? This is the problem with all types of race-based rulings, programs, judgements, etc. They are all extremely short-sighted and set dangerous precedents. It has nothing to do with our "moral dilemmas" with regard to the slave trade or Jim Crowe. These controversial cases are controversial because they have evolved way, way beyond that. And this doesn't even touch on the real reasons no black firefighters passed that test in the first place--which statistics would tell us had nothing to do with their race in the first place.
"Few issues have proved as difficult for the nation to resolve as overcoming the lingering legacies of slavery and racial discrimination".
Now that Stephen Carter has weighed in, I'm not sure if I can support Judge Sotomayor!I'm somewhat familiar with Prof. Carter's work on issues of religious liberty and affirmative action and have not been impressed. He tends to champion the cause of the powerful majority against the onslaught of the weaker minority.Nevertheless, support for President Obama's choice from any quarter is welcome.
I've taken time today to read about many of Sotomayor's judicial rulings, at least 40 of them. This woman is an honest-to-God moderate. I won't go into proving that--just google "Sotomayor, judicial rulings" and read for yourself. I did this because I simply could not believe that Obama was capable of choosing anyone but a hardcore liberal.
One last thing. I loved this quote:
"Well, we do not live in a generous country-not, at least, when generosity means a reluctance to assassinate the characters of those with whom we disagree."
I wonder if Stephen L. Carter thinks this truly applies to people other than Sotomayor, such as Sarah Palin.
Mary50: Judge Sotomayor's decision seems to me to reflect a respect for the due process of governance in the United States. The courts will deal with the legacy of racism until the legislative body conveys a different sense of what the electorate wants. That process may seem too slow for some, but a deliberate slow turning seems the only sure way to justice.
I once scored in the top twenty out of 3000 candidates for the Seattle Fire Department but did not get hired because they were taking only women and Asians that year. Unfair? Who can say? I know I am glad in hindsight that I did something else. And I know in hindsight that being a tall white man with a deep voice has smoothed my path.
I guess the point of this story is that it still seems easier to do well as a white man in America than as any other ethnic or gender group. The point where it is all evened up will come, not when you say it comes, or when I say it comes, but when we all know it has come.
I'm sure that she's a fine candidate, but I have noticed one oddity about the Supreme Court in recent years, and that is the predominance of Catholics. John Roberts, Clarence Thomas, Scalia, Alito, and Kennedy all belong to that faith. Sotomayor probably does too. Isn't that a heavy contingent, even if they don't all agree on everything, and isn't the predominance of Catholic justices relevant to Roe v. Wade?
Mary50 hits the nail on the head.
Opportunity and achievement - not privilege, should be the goal and the measure. Minority race status, as a privilege, is just as wrong headed, unfair, and harmful as any caste system.
I guess having empathy for a dyslexic white fire man who went through heroic efforts to get a promotion is not the type of empathy Obama is looking for. This decision was a serious miscarriage of justice by anyone's standard.
neverlate: where is your empathy for the black firefighters who had also made heroic efforts but were eliminated by poor results on a (possibly biased) test?
I'm glad Obama picked a woman, I don't care that she's a Hispanic. Many male judges are prickly and have "black robe disease". I'd like to know why all the blacks failed the test?
I refuse to believe they weren't intelligent. Haven't they been to the same schools as the whites? Okay, I don't agree with her on the firefighters, but that doesn't mean she won't be a good justice. Look at Scalia and his ethical violations, for which he said," So what, I determine what's unethical behavior". Yes, all the conservative men on the court are just perfect!
aland2 wrote:
neverlate: where is your empathy for the black firefighters who had also made heroic efforts but were eliminated by poor results on a (possibly biased) test?
___________
A possibly biased test? Maybe I possibly left my empathy at home? maybe, just maybe, it was possibly unbiased? Am I suppose to have empathy for the possibly? The liberal mind at work - WHY THE OBAMA CROWD JUST POSSIBLY SCARES THE HELL OUT OF ME!
"WHY THE OBAMA CROWD JUST POSSIBLY SCARES THE HELL OUT OF ME!"
Conservatives do scare awfully easy that is why I am going to invest in the adult diaper industry. I expect better than expected growth over the next several years.
Is it POSSIBLE there is something to be scared about given their empathy for identity politics, smugness, and determination to turn the US economy into some kind of centrally controlled spoils system. On the positive side, maybe the US government and UAW (this is a joke) can do no worse at running GM then the Wagoner did - I hear there is a line out the door for the opportunity to buy the Volt.
Obama was raised by a white grandmother and a white grandfather. Stop hating white men, please. Stop hating.
As a white male, nine Latina women on the bench would be fine by me; as long as they are the best legal minds in the country. My only question to Sotamayor if I had the opportunity, and thought she would answer honestly, would be "does the fact that your competition for the Justice position was limited by gender and ethnic consideration take some of the luster off this very prestigious nomination?" If she answered yes, I would vote for her confirmation.
Thank you.
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