Now here comes the SCOTUSBLOG with an examination of Judge Sonia Sotomayor's record on discrimination cases during her 11 years on the Second Circuit.
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 participated 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.So, in light of that, let me more specifically state my case.
The Republicans in the US Senate should take the strategic♠ view and while asking serious questions that go to the root of her judicial philosophy, treat her with the respect and dignity that has been so lacking on the part of Democratic Senators during hearings for people like Robert Bork and Clarence Thomas. She is a freebee. She is replacing a liberal, so nothing lost on the Court. She is going to be approved unless she upsets some of the Democratic Senators. The Republicans in the US Senate should keep their powder dry and wait to see what is coming down the trail next. The principle of "Conservation of Enemies"♥ applies here.
Regards — Cliff
♠ From Wikipedia: "In military terms, tactics is concerned with the conduct of an engagement while strategy is concerned with how different engagements are linked. In other words, how a battle is fought is a matter of tactics: whether it should be fought at all is a matter of strategy."
♥ Andrew Krepinevich's law of the conservation of enemies: Don't make any more than you need to have at any given time. I lifted this from a post on Afghanistan by Tom Ricks.
Cliff,
ReplyDeleteAgreed that the Republicans should hold their fire here, because the confirmation is inevitable and they can generate some goodwill by staying above the fray. Of course, don't want to be guilty of using the fallacy of composition here -- for any given Republican senator near a re-election campaign who wants to throw red meat at his *base* by making a big deal of this, it may make sense to fuss and fight for the TV cameras.
As to the diversity point, the point about the SCOTUS mainly coming from about three feeder law schools is a good one (and I think it also shows the silliness of any student or graduate of that legal *Holy Trinity* calling him- or herself *oppressed* given their likelihood of political efficacy and access to power down the road). All THAT having been said, I do think that Mrs. Sotomayor's race still makes her nomination an important mile marker in American history.
No fan of either the extreme right OR the extreme left, I celebrate every time one of these barriers is broken down, not just because it spites the bigots way off on the far right, but ALSO because it spites the conspiratorial loony-tunes left that peddles race hatred and the idea of the WASP male cabal that's secretly working to keep everyone else down. The irony of this, of course, is that by perpetuating that idea, those people are helping ensure that historically underrepresented groups stay that way.
So no matter whether it's Sandra Day O'Connor, L. Douglas Wilder, Barack Obama, or Sonia Sotomayor, every major FIRST that comes about helps ensure that the SECOND won't be such a big deal. In its stead will come more talk of actual merits and qualifications (we'll inevitably see this the next time we see a person of color nominated by a major party for President).
I'd call that progress!
best,
gp