Seriously: Obama is a serious student of the civil rights movement, which in turn drew a lot of inspiration from Gandhi. Both Gandhi and the Civil Rights movement made brilliant use of the following method: you do something right, which you suspect might lead your opponents to do something wrong. If you are right about them, they discredit themselves, without your having to lift a finger. If you're wrong, you are pleasantly surprised. But you do not have to do anything wrong or underhanded yourself, nor do you in any way have to hope that your opponents are bad people.
That's what he's doing now.
hilzoy: Sotomayor: Actual Facts!
As more or less everyone has already noted, a lot of people have been claiming that Sonia Sotomayor is a racist, would decide cases based on racial solidarity rather than on the law, and so forth. One natural way to check this would be to examine her actual record. She has, after all, been a judge for quite a while, so it should not be all that hard to see how she actually makes decisions.
Over at SCOTUSBlog, Tom Goldstein decided to do just that. He has been reading through all of Sotomayor's opinions in cases involving race. He promises to write more about them tomorrow, but here is what his analysis shows:
"Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.
Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent's point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.
Of the roughly 75 panel opinions rejecting claims of discrimination, Judge Sotomayor dissented 2 times. In Neilson v. Colgate-Palmolive Co., 199 F.3d 642 (1999), she dissented from the affirmance of the district court's order appointing a guardian for the plaintiff, an issue unrelated to race. In Gant v. Wallingford Bd. of Educ., 195 F.3d 134 (1999), she would have allowed a black kindergartner to proceed with the claim that he was discriminated against in a school transfer. A third dissent did not relate to race discrimination: In Pappas v. Giuliani, 290 F.3d 143 (2002), she dissented from the majority's holding that the NYPD could fire a white employee for distributing racist materials.
As noted in the post below, Judge Sotomayor was twice on panels reversing district court decisions agreeing with race-related claims - i.e., reversing a finding of impermissible race-based decisions. Both were criminal cases involving jury selection. (...)
In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She particulated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking."
I honestly don't know why so many people focus so much attention on their somewhat overwrought interpretations of one line in a speech and so little attention on ascertaining what kind of judge Sonia Sotomayor has been. Her decisions are not classified documents. They are public, and anyone can read them. Moreover, they plainly provide the best evidence of the kind of judge she will be.
I cannot imagine why more journalists have not done the kind of analysis that Tom Goldstein has -- the ratio of reporting on what someone thinks s/he can discern in one line of Sotomayor's speech to reporting on actual cases is just about the reverse of what it ought to be. That makes me all the more grateful to SCOTUSBlog for giving us the kind of analysis we need, but get far too rarely.
One other interesting point: Sotomayor's panel has been criticized for not explaining their reasoning in the Ricci case. Whether this is plausibly construed as an attempt to duck the issues depends in part on how common it is for a panel on the Second Circuit to affirm a district court opinion without explaining why. Goldstein therefore checked this point as he was going through the race-related cases:
"In the roughly 55 cases in which the panel affirmed district court decisions rejecting a claim of employment discrimination or retaliation, the panel published its opinion or order only 5 times."
Good to know.
- And the NYTimes bites on the RW meme of the day. Sigh.
Sotomayor’s Focus on Race Issues May Be Hurdle
By DAVID D. KIRKPATRICK
Sonia Sotomayor’s Supreme Court nomination has opened a new affirmative action battle, with each side invoking the election of the first black president in support of its cause.
hilzoy: They Can't Help Themselves
Even by Republican standards, the Sotomayor meltdown is pretty impressive. Tom Tancredo calls La Raza, which is a pretty ordinary advocacy group, "a Latino KKK without the hoods or the nooses." Newt Gingrich writes that we cannot accept Sotomayor's rather anodyne remarks about experience being helpful in judging "if Civil War, suffrage, and Civil Rights are to mean anything", which would surely be news to all the African-Americans who are not presently enslaved.
Rush Limbaugh compares Sotomayor to David Duke. Michael Goldfarb and John Derbyshire's readers are going on about the vast privileges enjoyed by Puerto Ricans who grow up poor in the projects. The Weekly Standard's Fred Barnes thinks her summa doesn't mean much, since "there's some schools and maybe Princeton's not one of them, where if you don't get Summa Cum Laude then or some kind of Cum Laude, you then, you're a D+ student." (For the record, when I was there, Princeton gave summas to around 5% of its students.)
But really, nothing quite compares to G. Gordon Liddy saying not just that she is a member of La Raza, "which means in illegal alien, "the race"", but this:
"Let's hope that the key conferences aren't when she's menstruating or something, or just before she's going to menstruate. That would really be bad. Lord knows what we would get then."
Think of the possibilities. She could get into one of her quaint native costumes, go berserk, and start writing on the walls in menstrual blood with a tampon, like so:
(Yes, of course I know that Quetzalcoatl is an Aztec God, and Aztlan is the mythical home of the Aztecs, and Aztecs are Mexican, and Sonia Sotomayor is Puerto Rican. But I'm channeling G. Gordon Liddy's nightmares here, and do you think he knows the difference?)
Seriously: Obama is a serious student of the civil rights movement, which in turn drew a lot of inspiration from Gandhi. Both Gandhi and the Civil Rights movement made brilliant use of the following method: you do something right, which you suspect might lead your opponents to do something wrong. If you are right about them, they discredit themselves, without your having to lift a finger. If you're wrong, you are pleasantly surprised. But you do not have to do anything wrong or underhanded yourself, nor do you in any way have to hope that your opponents are bad people.
That's what he's doing now. He has chosen a judge who is by any standard exceptionally qualified, and who has, in addition, a fairly conservative judicial temperament. She sticks close to the law; she follows precedent; having read several of her opinions, if I have any criticism of her, it's that not seen much evidence of an overarching judicial philosophy other than restraint. (To be clear: if a judge has to lack something, I'd rather it be an overarching philosophy than devotion to the law as written. But I'd rather have both.)
But she is also a Puerto Rican woman. If the Republican Party were led by sane and decent people, this would not matter. But they aren't. As a result, they seem to be unable to see anything about her besides her ethnicity and her gender. The idea that she must be a practitioner of identity politics, a person whose every success is due to preferential treatment, etc., is apparently one they absolutely cannot resist.
All Obama had to do was nominate an excellent justice, and all that is made plain.
And I hate it. I want to have a reasonable opposition party. I also don't want people of color, and especially kids, to have to listen to all this bigotry. We should be better than this.
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