SCOTUS: Sotomayor, Affirmative Action, the Ricci Case and the GOP’s Helms Ad Groundhog Day Strategery

Slate’s Dahlia Lithwick appeared on The Takeaway radio program in NYC this morning, and her characterization on the Sotomayor nomination and her Hispanic heritage was spot on:

She’s not just another appeals court judge–she is dramatically different.

As I said earlier, Sotomayor brings real world experience to the table along with her bench credentials, akin to what we saw with Justices Marshall and Ginsburg, albeit on different subjects and intensity.  Dahlia indicated that affirmative action cases may be the flashpoint for the GOP on Sotomayor.  I agree — and not just because her Hispanic heritage gives the nuttier among them the opportunity to dog whistle with abandon.

And, then behold.  On cue, it’s Wendy Long at The Corner:

Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that 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.

She reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety….

I’d quote more, but Long goes on to try to gin up a 9/11 sympathy tour as justification for mischaracterizing Sotomayor’s record. These people are so predictable you could script it.  But resorting to the Guiliani "9/11, 9/11, 9/11" defensive canard to buck up your argument is such a pathetic sign of weakness, it’s hard not to just sit here and laugh out loud.  Pitiful.

I’ve been pulling Sotomayor opinions since Obama was elected — she was likely on the short list and I like to do my homework — perusing her legal language and trying to get a feel for her judicial temperament and adherence to precedent, facts and law versus outside considerations. 

From what I can see, with very few exceptions, she plays it down the middle for the most part — sticking with the statutory law, the prior precedents and the underlying court findings where appropriate.  Which is exactly what you want from a judge when you are arguing an appellate case: predictability under the law, with just enough wiggle room to be able to argue your case to a mind that isn’t closed to your nuances.

But there are cases where the wingnuttiest will try to make hay. 

And one of the more prominent, which is already being blast faxed to teevee media based on a short review of which cases are being mentioned prominently this morning, is the Ricci case. No surprise, there, given that the Ward Connerly types at the American Civil Rights Institute and the Federalist Society/Corner folks have been all over this for a while (with little traction outside the usual suspects, I might add).

Has the GOP decided to just replay the Helms "hands" ad (YouTube) as their big strategery? Honestly?!?

I think Anonymous Liberal’s take on how the nomination dance will play out is still spot on:

The process will go something like this. First, Obama will nominate someone with impeccable legal credentials. Then, conservative "legal experts" like Crazy Ed Whelan will dig around and come up with some issue they find "very alarming." That criticism will undoubtedly involve a willful misreading of some prior judicial opinion or legal paper, but that won’t stop the Rush Limbaughs and Sean Hannitys of the world from seizing on it and hyping it relentlessly. Ultimately, most Republicans in the Senate (with the possible exception of Senators Snowe and Collins) will cave to the Limbaugh wing of the party and vote against confirmation. The nominee will be confirmed by a 60-39 margin.

But I’m sure all the pre-nomination right-wing hoo haw has nothing whatsoever to do with self-serving political fundraising.  No siree.

51 Responses to "SCOTUS: Sotomayor, Affirmative Action, the Ricci Case and the GOP’s Helms Ad Groundhog Day Strategery"
AZ Matt | Tuesday May 26, 2009 07:03 am 1

Good Morning Christy!

Aren’t you glad that Obama decided to provide you a big legal goodieto chew for today and the next couple of months?!

Christy Hardin Smith | Tuesday May 26, 2009 07:04 am 2
In response to AZ Matt @ 1

Have been expecting this for over a week, so I’m glad this shoe finally dropped, to be honest.

AZ Matt | Tuesday May 26, 2009 07:05 am 3

Hurricane season is coming and the first named storm is Limpballs, then there will be Hannity, and then Hurricane Sessions.

AZ Matt | Tuesday May 26, 2009 07:06 am 4
In response to Christy Hardin Smith @ 2

Good thing you took your vacation last week!!!

JimWhite | Tuesday May 26, 2009 07:08 am 5

Krauthammer is yammering on Faux that Sotomayor is an extremist in identity politics. AL’s predicition is already playing out a few minutes before the official announcement.

Prairie Sunshine | Tuesday May 26, 2009 07:09 am 6

Tweety trying to gin up the conflict even as we type.

Because it’s all about the verbal wrestling match, doncha know. Buchanan must be getting his makeup on….

cbl2 | Tuesday May 26, 2009 07:09 am 7

mad props to Anonymous Liberal – perfecto

60thStreet | Tuesday May 26, 2009 07:12 am 8

Lolz! I soooooooo wanna see the Republicans yell and scream and filibuster a latina SCOTUS pick! I hope they do it all summer long.

This will do wonders for their efforts to win back the votes of women and latinos!

They are so FUCKED!

Knut | Tuesday May 26, 2009 07:14 am 9

This is a great nomination, and I’m sure Rahm worked the refs pretty hard before her name was released to ensure she goes through the Senate with a minimum of fuss. If the thugs want to lose Arizona and Texas the next go-round, and put Florida in the bag for the Dems, all they have to do is be nasty to her. (Not that I don’t think the notion of electoral catastrophe will phase them). Between advocating torture, psychopathy, and running down women and Hispanics, the Thugs have their work cut out for themselves. So many idiocies, so little time.

windje | Tuesday May 26, 2009 07:23 am 10

Is it more than just irony that Sotomayor is exactly the Princeton student that Concerned Alumni of Princeton (of Sam Alito allegedly was a member) was trying to keep out of Princeton?


Elliott | Tuesday May 26, 2009 07:24 am 11
In response to windje @ 10

ooo that’s an interesting tidbit

Loo Hoo. | Tuesday May 26, 2009 07:24 am 12
In response to windje @ 10

That would be beautiful!

cbl2 | Tuesday May 26, 2009 07:25 am 13

this looks to be their plutonium . . .

2001 Speech given to (horrors!) Berkeley La Raza Law Journal

text here – NYT

Identity Politics ! . . .blah, blah, blah, bashing white guys !, blah, blah, blah beans and rice!, blah, bla

mlsinCO | Tuesday May 26, 2009 07:26 am 14

Can someone inform the right wing that a lack of empathy is clinical evidence of a psychopath? I fear that many of our Republican “friends” have a bit of psychopathology in their makeup.

JimWhite | Tuesday May 26, 2009 07:28 am 15
In response to mlsinCO @ 14

Just ask George Lakoff. He has a few things to say about empathy.

Raven | Tuesday May 26, 2009 07:29 am 16

Rule of Law.

Broadstreetbuddy | Tuesday May 26, 2009 07:29 am 17

I just hope her she has paid her taxes, *sigh*

oldgold | Tuesday May 26, 2009 07:33 am 18

There was a time when a discussion of the Latino vote or any ethnic vote being a major consideration in the nomination of a Supreme Court Justice would have offended me. But, after Bush v. Gore, not so much.

Christy Hardin Smith | Tuesday May 26, 2009 07:35 am 19
In response to oldgold @ 18

It has been an enormous sea change the last few years in what a political football the courts have become the last few years, isn’t it?

dmac | Tuesday May 26, 2009 07:37 am 20
In response to windje @ 10

when you blindly throw a boomerang with enough force it will come back to hit you from behind, a long time after you threw it.

Raven | Tuesday May 26, 2009 07:37 am 21

Turley dissing her intellect.

JimWhite | Tuesday May 26, 2009 07:38 am 22

I just realized how long it’s been since I was happy with something Obama did…

foothillsmike | Tuesday May 26, 2009 07:39 am 23

Spector has endorsed and praised Stomayor.

Christy Hardin Smith | Tuesday May 26, 2009 07:39 am 24
In response to Raven @ 21

I’ve been reading a lot of her opinions of late — they are geared toward mechanics of law and common sense resl world application, and not toward overarching theoretical implications. So it doesn’t surprise me that Turley — whose intellect tends toward theory and larger construct — doesn’t jibe with her approach. Truly.

But having had to survive in that “real world” trial day in and day out of my former practice, I really appreciate a lot of that approach from her. And I’ll try to detail why in post over the next few days.

I just have to find time to write them out. *g*

AZ Matt | Tuesday May 26, 2009 07:40 am 25

Good Luck Republicans, you are truly f****d!

Raven | Tuesday May 26, 2009 07:42 am 26

Sounds good. What strikes me is that Turley is all over Obama as well.

dmac | Tuesday May 26, 2009 07:42 am 27

cornyn up on fox after commercials

let’s see what he has to say about the ‘racy’ latina. you know that’s what he’s thinkin’….you know it is..and she’s from the bronx…

let’s see how many euphemisms he comes up with for the words ‘woman’ and ‘latin’ and ‘east coast’. i say, 12.

bgrothus | Tuesday May 26, 2009 07:43 am 28

I think we have seen (who could have predicted) the best of the multiplicity of obnoxious objection and obligatory obfuscation in re: the upcoming inevitable obstruction of Sotomayor during the last few weeks. The Republicans are on a sure route to obscurity. Obama has played a good hand.

dmac | Tuesday May 26, 2009 07:44 am 29
In response to foothillsmike @ 23

one of the first out–
his first payment of dues, now he gets his temporary club card?


Christy Hardin Smith | Tuesday May 26, 2009 07:46 am 30

That’s because Turley had very high hopes on a lot of constitutional protection and civil liberties issues with the change of administration that have been dashed. He’s peeved at Obama for good reason legally — it’s not just something he argues for clients, he really believes it’s the right thing to do and Obama not doing it offends him.

I see exactly where he’s coming from on that. I just didn’t have the same high expectation because I’m more of a political realist when it comes to Beltway action versus words, eh? At least that way when things go well, I get to be pleasantly surprised. *g*

60thStreet | Tuesday May 26, 2009 07:49 am 31

I wonder if, after this pick goes through, the MSM will finally have said “filibuster” enough times to bash it into the public consciousness and educate them about the process and Republican abusers and “nuke-u-ler awpshuns”.

dmac | Tuesday May 26, 2009 07:52 am 32

cornyn–judiciary committee

policy or elected officials….

has not met her..

compelling personal story, greatness of america. overcome, perservere, does she possess qualities and temperament, making policy or role is to interpret the law as handed down from the people. huh?

‘oh, the drama’/s-hemmer

lot of attention, compelling personal story, record of accomplishment, fed dist ct by hwb, appeals court by clinton, are entirely different jobs==(ohhhh, nowwwww they are),,,,totally different roles, take our time, ambarassoc background check, and fbi do its job, and ask kinds of questions, etc…..

mentioned temperatment a few times, how long till the ‘emotional’ woman thing comes up? and reactionary woman, liberal thing comes up?

(lame) appeared not ready to attack yet, must not have gotten his fax in austin yet. being very careful. no tclear what ground work he was laying for the nastydogs.

cbl2 | Tuesday May 26, 2009 07:52 am 33
In response to dmac @ 29

Specter voted for her confirmation to the Appeals Court

so did Hatch and Thurmond, along with 6 others still serving (looking them up now)

apparently Hatch and Thurmond’s yea’s were tied to a ‘deal’ to allow more conservative jurist’s nominations to go forward

Christy Hardin Smith | Tuesday May 26, 2009 07:53 am 34
In response to dmac @ 32

He has a number of Hispanics among his own electorate in TX, eh? Methinks Cornyn’s ability to hit on some of this may be blunted by his own electoral concerns in that regard.

dmac | Tuesday May 26, 2009 07:59 am 35


brent baier as commentator–
sessions wnats more time before the hearings.
baier just brought up minnesota. one vote.

appeal would drag this out.

need that vote to break filibuster.

dems don’t have votes to break filibuster without minn.

(hmm, maybe they do, lots of republicans in latino districts.)

now comparing roberts’ confirmation. alito. how hard do the repubs fight, do they do the same things they cried about?

well, yes.-they said it the long way-paraphrased.

hemmer—’her personality can be rather strong’ they look into that when they return….(this otta be good)
i remember when he was doing ’special interest’ stories in cincinnati. wondered why he was on my tv then, and now. watb.

cbl2 | Tuesday May 26, 2009 07:59 am 36

Bennett (Utah)

voted to confirm her to Appellate Bench

Christy Hardin Smith | Tuesday May 26, 2009 08:01 am 37
In response to dmac @ 35

Yes, because in my experience, federal judges are often just milk-toasty.

*rolls eyes*

Jeebus, we’re going with the “uppity woman” meme now? Big mistake.

JimWhite | Tuesday May 26, 2009 08:04 am 38

Someone needs to ask JEB! for a reaction. Since he’s married to a Latina, he will have to decide if he’s going to try to please the base or keep peace at home…

foothillsmike | Tuesday May 26, 2009 08:10 am 39

Cornyn doesn’t face the electorate until 2014 whereas Kay Baily Hutchinson is planning a run for gov. in 2010.

60thStreet | Tuesday May 26, 2009 08:17 am 40

No way the Senators from Maine will support filibustering her. They’ve voted with Obama so far on women’s issues and even Hillary. Specter won’t either. Couple that with the electoral concerns of some other Republicans and Obama has this in the bag. Everything you hear between now and the confirmation will be from the wingnutosphere and politicians with nothing to lose by opposing her. They know Obama has one and maybe two more SCOTUS picks coming, so they will avoid this battle.

Ben Nelson, however, well, count on him to vote against her for a variety of douchbaggey reasons.

dmac | Tuesday May 26, 2009 08:17 am 41

yep, that’s why i thought he would be using euphemisms….heh, that his latino constituents didn’t ‘get’…..

hemmer and blondie threw it over to other anchors

major garrett–

history, baseball case synopsis, saved baseball………a way to put what kind of justice she would be….

reaction both ends of the spectrum….

left is pleased, great american story, elevating minority, dealt with issues on our side.

right–empathy, activism would be her approach, nothing wrong with her story, 2nd court appt yuck….senate taking control of this nomination…will oppose her…

learning more about her decisions, in front of sc right now…aff action….passed over forpromotions…white firefighters, they got top scores and weren’t promoted…..white firefighters, reverse discrimination. she dismissed it….fellow judges , disposition was to bury it. ‘hardly address the weighty issues of this case’…thought she was trying to ‘kill it’…kicked it back to the firefighters,..they leapfrogged it to the sc.

firefighters lost. questions, blistering dissent from fellow judge.
next nominee will be directly impacted by this case. she would recuse, or suppposed to be done in june….she’s been reversed almost every time..yadda.

mckaskill–’3 person sherpa team’ (yes, the anchor really said that), to guide nominee through the process..remarkable intellect and story…prosecutor, 400 published opinions-one or two they will pick on, not surprising……

chick interviewer/prior statements-role…

mck–how important that someone doesn’t legislate from the bench…95 percent of the time agrees with the republican appointee….(*oh boy)

chick interviewer/plays comments from a diversity lecture-identity politics-latina better than a white male in seeing certain things.

mckaskill misunderstands the question, again, thought the quote was an attack, no, the nominee said that, please respond…duh…get to the context of the comments, look at what she has been through, richly american experince….(get mck away from the microphone. argh)….lived the life of the comomn american, yadda..

mckaskill is just not that good. what the heck. why is she out there laying ground for the new nominee? she’s digging potholes.
i thought that after their revolt, the new ‘bobblehead talking heads’ dem group (bayh and co) were banished from appearing on national tv as spokespeople. what happened with that?

dmac | Tuesday May 26, 2009 08:22 am 42
In response to cbl2 @ 36

thanks for that and the other stuff…didn’t have time to comment back….

60thStreet | Tuesday May 26, 2009 08:26 am 43
In response to foothillsmike @ 39

Right, good call. She (and Murkowski) also supported Lilly Ledbetter and Hillary’s nomination.

cbl2 | Tuesday May 26, 2009 08:27 am 44
In response to dmac @ 41

I’m already wondering if McCaskill’s job was to intentionally stir the pot – given their talking point is one of ‘we’ll be all civil and hold our fire’, blah, blah, blah is she double dog darin’ ‘em ? gosh I hope so

mack | Tuesday May 26, 2009 08:29 am 45

Is 9-11 the corollary to Godwin’s Law?

goldpearl | Tuesday May 26, 2009 08:32 am 46

christy, you have mail at the redhead fdl addy

dmac | Tuesday May 26, 2009 08:44 am 47

last one—and i am doing this because i remember what it was like to have dial-up and no cable….

(posted this in the next thread by mistake, so, it’s a double-long one)

thad bingel
she’s not a bipartidan choice.

other guy–moderate, at least 70 votes. brilliant legal mind. another home run decision. someone who will gather bipartisan support.

thad–not moderate, more liberal that was on the short list, conventional pick. left of chenter pres, liberal leaning judge….

moderator–hispanics fastest voter group/

other guy–superb judge superb background

the best in country?/

other guy–political issues, real solid basis for opposing her, robers was brilliant, here it’s very similar..with impeccable credentials, latino, added plus, woman as well, repub need really god reason to go agiant her

rebubs don’t have #s/

thad–really rough to stop nomination…judicial philosophies to interpret not empathy (of what you want law to be) …….laying ground work for future battles in this presidency.

ok, done. same keywords by all….brilliant, incredible story-so what, liberal schools, temperament-ie woman, woman, latina, tried the ‘is she the best in the land’ thing, woman, latina, emotional-oh, that was simply implied, compelling personal story….one brought up ginsberg and scalito’s friendship as an example of diametrically opposed people being aok with each other. dunno, i think they haven’t dropped the ‘fliers’ from the airplanes yet.

rove is on now….

dmac May 26th, 2009 at 8:42 am
In response to dmac @ 2 (show text)

forgot one–white men…..ha.

‘difficult colleague’

roadblock, on the other hand, judicial committee rules require that 10 votes in affirm to send to the floor, one from the minority…..will repubs say she is unworthy to be a sc justice….obama voted against roberts and alito…voted to filibuster alito..

comment to schumer’s comments–prejudging, easy for obama to vote against two of the most accomplished judges, footage of her at duke-we make law and policy, berkely-white men judges. we’re gonna have all kinds of interesting things that will play out…(i bet)
someone who is controversial, a chance to appoint a woman and a latino, sensitive to criticisms, never going to be stronger as he is today.


dmac | Tuesday May 26, 2009 08:50 am 48
In response to cbl2 @ 44

i dunno.

so many times she just mucks up the works, and i have a feeling this was one of them.

(i am not a fan, and don’t know how in the hell she got to the head of the line..have always wondered. i think she’s dumber than a rock boehner.)

she used trite/generic/doublespeak phrases to describe sotomayer. maybe she’s throwing the ‘chum’ ….

it’s possible.

she could handle that.

maybe that’s her role, i never thought of it that way….a chum thrower.

dmac | Tuesday May 26, 2009 08:51 am 49
In response to mack @ 45

no, ‘olly olly in come free’

Christy Hardin Smith | Tuesday May 26, 2009 08:58 am 50

btw, bit of a SCOTUS laugh for folks who’d like one up top…

tejanarusa | Tuesday May 26, 2009 10:21 pm 51

To me, that’s what Obama meant by “empathy,” and the rest of the ocmment that was part of.

That rea-world-experience was a good part of what Thurgood Marshall brought to the Court, and it is needed now desperately.

When a SCOTUS male justice can say, in the hearing of a case of a school strip-searching a pubescent girl, that such a thing is no big deal, no worse than changing clothes in gym class (paraphrasing, too worked up to search up a link), you know real-world and real-woman experience is sorely needed.

The current justices have very little practical, representing people-clients (as opposed to corporate) experience, and many of their decisions make that painfully obvious, failing to recognize that their ivory-tower theory is not borne out in the ‘real world.”
I don’t care if she isn’t brilliant (but you don’t graduate at the top of your class because you were a “quota admittee”) if she can bring that experience and convey it to the tower-dwellers.
So far, I’m for her.
(disclosure-although born more-or-less-a-WASP-or a hillbilly, take your pick, for 22 years I’ve been a part of a Hispanic family, Mexican-American in this case. Possibly a slight bias on my part. *g*)

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