Confirming Nonsense: Both Liberals and Conservatives Distort Debate Over Sotomayor

200px-Sonia_SotomayorThe debate over Judge Sonia Sotomayor continues to rage this week. What is remarkable is how much is being said and how little substance can be found in the coverage. One would think that the law of averages alone would guarantee that some substantive points would be hit, if only by accident. It is becoming increasingly clear that, once again, we will not have a substantive and civil review of the qualifications of a Supreme Court nominee. Neither conservatives nor liberals seem to want (or are willing to tolerate) objective discussion of Sotomayor’s qualifications or opinions. For what it is worth, I would like to discard some of the most often heard arguments in the vain hope that we might still achieve some level of reasonable discourse in this debate.

Let me first address some of the conservative attacks since I addressed some of the liberal attacks earlier.


Claim: Sotomayor is a judicial activist.

As I have stated in my review of her cases, I cannot find any evidence to support the view that Sotomayor is an activist. Indeed, I cannot find much evidence to support the assumption by both ends of the spectrum that she is extremely liberal. She is clearly not as liberal as other short-list candidates like Diane Wood of the Seventh Circuit. She votes regularly with her conservative colleagues and does not have a blind voting record in areas like discrimination etc. If you compare her opinions to Justice Sam Alito when he was an appellate judge, she is the very personification of blind justice. Alito rarely voted against the government and was as predictable as a Swiss clock in terms of outcome in cases. Sotomayor, in contrast, has often voted against liberal values and interest groups. Her votes in Tigue v. DOJ and Wood v. FBI were viewed as contrary to principles of open government and more in line with the Bush Administration’s views. She supported the result in Doninger v. Niehoff, which was a highly controversial case and major blow to both the first amendment and student rights. I have now read all of her major opinions and dozens of less important cases. I see absolutely no evidence of bias, as I did with Sam Alito.

Claim: Sotomayor is a bad judge due to her reversals by the Supreme Court.

This claim is particularly bizarre, citing a 60 percent reversal rate. This is an example of how statistical analysis should be left to professionals and not attempted at home. Only five of Sotomayor’s opinions have been reviewed by the Supreme Court — not an unusual number given her 18 years on the bench. However, with such a small pool of cases, even a single decision going either way will have a huge impact on her “batting average.” The reversal rate for all appeals is around 75 percent. I expect that her percentage of losses will go up with the Ricci case which is likely to be overturned in my view. However, that does not mean that she is a poor judge. If you review these cases, both Republican and Democratic appointed judges supported her side. They were not glaring acts of judicial activism, but matters of reasonable disagreement between jurists.

Claim: Sotomayor’s comments in speeches show that she is a racist.

Much has been made of her statement in a speech that “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.” I strongly disagree with this statement. Some of the greatest and most sympathetic justices in history came from privileged backgrounds and some of the least impressive and least sympathetic justices came from less privileged backgrounds. I doubt that Judge Sotomayor would view Justice Thomas or former Texas Supreme Court justice Alberto Gonzales as examples of diversity in background making for a better jurist. However, it does not make her a racist or radical. There is no question that experience counts. Marshall did play a transformative role on the Court in its consideration of cases in a variety of areas. The problem with her statement is the use of the words “better conclusion.” She can rightfully argue that her experience gives her a deeper understanding and a better perspective. However, she was wrong to suggest that, simply due to her upbringing and ethnic background, she will reach better conclusions. That, however, does not transform her into a racist by any reasonable (or logical) interpretation of that term.

Claim: Her statement about policy making on the Court makes her a danger.

In a speech at Duke, Sotomayor stated: “All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made. And I know this is on tape and I should never say that because we don’t make law. I know. Okay, I know. I’m not promoting it. I’m not advocating it. I know.” She was right, she should not have said it. Once again, this was an unwise and ill-considered statement. However, Justice Scalia and others have made such mistakes in speeches. Moreover, this one was understandable. Courts interpret laws that can have sweeping impacts on citizens. They also set principles of interpretation and rules of construction. The use of the word “policy” was a mistake. They do not make policy in the political sense. They do, however, shape judicial doctrines and rules. As I noted in my review of her cases, here, she has revealed no such activism in cases over an eighteen year period.

Claim: The Lack of Intellectual Depth in Sotomayor’s Opinions Shows That She is Not Intellectual Enough for the Supreme Court.

Like a number of other professors and commentators, I have expressed disappointment in the fact that Sotomayor’s opinions lack of deeper view of the law or any particularly profound observations on the law. Conservatives, however, take this lack of depth in these opinions as evidence that Sotomayor is not smart or competent. This is demonstrably absurd. These opinions are little different from those of Alito, Souter, or the limited writings of Thomas. Clearly, Sotomayor is quite intelligent. This record is little different from records of Republican nominees who enthralled these same critics.

Ultimately the greatest difficulty for Republicans is to insist on a searching confirmation hearing with specific answers from Sotomayor after their treatment of Roberts and Alito. Those confirmation hearings were laughable photo ops for Senators (including Democrats) who thrilled in the chance to talk about baseball and movies.


Claim: Sotomayor cannot be blamed for decisions where she is not the author.

Many liberals and civil libertarians have criticized Sotomayor for her participation in panel or en banc decisions that are viewed as inimical or hostile to free speech, open government and other principles. The response from supporters has been that, if Sotomayor was not the author, she cannot be blamed for the opinion. I believe Judge Sotomayor would be the first to correct his misunderstanding of judicial rulings. Any judge has the ability to file a concurrence or a dissenting opinion when she has disagreements with the majority opinion. Judge Sotomayer did precisely that in the Gant v. Wallingford Board of Education case. Likewise, other judges filed concurring and dissenting opinions in the controversial decision in Ricci v. DeStefano. When Sotomayor voted with the majority in Doninger v. Niehoff, she bears the full blame for both the result and the language in that opinion. Every judge must sign off on a majority opinion and has a professional and ethical responsibility to agree with the opinion before affixing their signature.

Claim: The Lack of Depth or Broad Legal Analysis of Sotomayor’s Opinions Only Shows That She Is a Good Judge Who Decides Cases on the Merits.

There is an effort by liberals to turn lemons into lemonade with regard to Sotomayor’s opinions, which are pretty unremarkable. The New York Times and various neutral commentators have described these opinions as narrow, limited and generally lacking any deeper historical or theoretical treatment. Sotomayor’s most vocal supporters have yet to cite a single opinion in 18 years that is in any way notable in its insightful treatment of the law. That should be a concern. Most judges (including judges on the shortlist) have opinions that show a vision for the law, a broader view of where a given case fits within a broader area of jurisprudence. These cases are the reason that they have been routinely cited as possible justices. Many of Sotomayor’s colleagues like Guido Calabresi are praised for such brilliant analysis. This highlights the difference between a judge and a justice. A justice must attempt not only to resolve a case but to maintain a coherent and consistent approach in a given area. We have had too many justices who lack such a vision and produce endlessly conflicting and insular decisions. Cases become little more than a muscle vote on outcome. An interesting comparison can be drawn with the relatively brief treatment given second amendment jurisprudence by Sotomayor’s panel in two prior cases (reviewed in the earlier blog entry) and the Second Circuit’s recent more fulsome ruling in National Rifle Association v. Chicago, here. In that case, Judges Frank Easterbrook and Richard Posner reach the same conclusion as Sotomayor but offer a far better understanding of their view of the underlying law and principles. These liberal and conservative jurists — Calabresi, Easterbrook, and Posner — have many such opinions with such substantive analysis. They have all rightfully been cited as ideal candidates for the Supreme Court due to their past writings. Clearly, most cases do not warrant such treatment, but occasionally such attention is warranted. These are the opinions that speak to jurisprudence and not just judging. They shape the law and the debate over the evolution of legal principle. The complete absence of such opinions in eighteen years of work by Judge Sotomayor is surprising and disappointing.

Once again, that could reflect a certain deference to her appellate status or a lack of broader vision. It is certainly true, as she stated in a prior interview, that “95 percent of the cases before most judges are fairly mundane.” She used this observation to explain why she does not write grand opinions: “I’m not going to be able to spend much time on lofty ideals.” However, after 18 years, such cases do come along and warrant a fuller treatment with a glimpse at a deeper judicial philosophy. In almost two decades of opinions and writings, we should have some notion of Sotomayor’s deeper intellectual view of the law. We do not. The fact is that these opinions are remarkably unremarkable. It is certainly true that this record is not unlike prior nominees like Sam Alito. I criticized Alito’s appointment on the same ground and (unlike Sotomayor) I opposed him because I believed that opinions were not just limited but also biased. When pressed on Sotomayor’s opinions, supporters either refer back to her inspiring life or try to argue that it is good not to offer a broader vision of the law. Neither response is a sufficient answer to this criticism.

Claim: Questioning Sotomayor’s opinions must be an act of racism or sexism or both.

Just as conservatives should be denounced for calling Sotomayor a racist, liberals should be ashamed for using the same attack on people who question the depth or vigor of her past writings. Criticizing Sotomayor’s opinions as lacking intellectual depth is not the same as saying that she lacks intellectual depth as a person and certainly nothing about her race or gender. Indeed, for those of us who criticized Alito on the very same shortcoming, it would be racist and sexist to treat Sotomayor differently. Over the course of a long judicial and professional career, Sotomayor has never exhibited particularly profound views of the law in opinions or law review articles. Other candidates like Diane Wood and Harold Koh have demonstrated such views.

What is striking about these attacks on racism and sexism is how little liberals appear to tolerate even moderate criticism of an Obama nominee. This is precisely the blind rage and rhetoric that liberals denounced among Republicans for the last eight years with regard to Bush nominees and policies. Indeed, most liberals know very little about Sotomayor’s judicial history or ideology despite the fact that she will hold one of nine critical positions on the Court. In reality, Sotomayor is demonstrably less liberal than someone like Wood and has opposed core liberal values in past decisions. She often appears more “empathetic” toward authority figures from police officers accused of abuse to school officials cracking down on student speech. The vicious attacks reflect the low-grade discourse that we have on such issues today in our red state/blue state mindset. Obama had the ability to appoint anyone and he nominated someone with an unknown legal philosophy and mixed voting record. We should be able to discuss the lack of depth in these opinions objectively without calls of racism or sexism. Otherwise, these confirmations become personality driven events with little substance or scrutiny.

Claim: Sotomayor will clearly be a great justice.

I am currently working on a cover magazine piece that will identify the greatest justices and try to suggest some objective criteria for such a ranking (though I will also acknowledge considerable subjectivity in this exercise). Sotomayor supporters have insisted that she is clearly someone who will be one of the “greats.” This characterization depends on what you are seeking in a nominee and what you mean by a great justice. In my Supreme Court class, we often discuss such rankings. For example, supporters have understandably invoked Justice Thurgood Marshall repeatedly in describing Sotomayor. As I have stated on the air, Marshall was indeed a great justice (and happens to be one of my personal heros who I discuss every year in welcoming the class of new law students to George Washington). Marshall was a brilliant lawyer and a brilliant choice for the Court. He offered his colleagues wonderful insights into a number of areas and supported the protection and expansion of core liberties while on the Court. I believe that Sotomayor will bring such a perspective to the Court and challenge existing ideas of her colleagues.

Before this nomination, many of us argued for the appointment of someone who would deepen the Court’s theoretical or intellectual debate — something that is increasingly absent in decisions of the Court. Frankly, Marshall was not viewed as being one of the most influential justices in the shaping of legal theory or fundamental views of the law. Marshall himself never claimed or suggested such a position on the Court. He was great in other respects. When justices are ranked by academics in terms of their contributions to the intellectual or theoretical development of the law, Marshall is rarely mentioned. Once again, it depends on what you want out of a nominee. The Republicans have been skilled in selecting judges and justices who would offer a strong theoretical foundation to shape doctrine and theory for generations. Scalia is unpopular with liberals but he has had such a long-term impact on the law. Being a justice is not simply the act of voting. A great justice on the issue of legal theory is someone who can shape not just the ruling in one case but such cases for a generation. Sotomayor could still prove to be such a jurist, but she has not demonstrated such a long-term or deeper view as a judge.

Claim: Sotomayor’s academic background proves that she will be an intellectual force on the Court.

I have taught a course on the Supreme Court and covered that Court as a columnist and commentator for roughly two decades. I have never seen an undergraduate or law school record relied upon so heavily to defend an appointment. The last time I checked placement in a Princeton class said a lot about your chances for acceptance in a graduate school but not the U.S. Supreme Court. Sotomayor was a brilliant student and is clearly an impressive person. However, being bright is not the measure of a great justice. All of these candidates are bright. Many have had inspiring personal stories. We often encounter the same issue in the appointment of faculty. Students who graduate at the top of their classes and serve prestigious clerkships are not necessarily gifted or insightful in their view of jurisprudence or the law. We look for people who can help shape their fields of the law and demonstrate a broader vision. The same standard should apply to Supreme Court justices. Sotomayor is by any estimation an unknown in how she views the law and whether she will contribute in a deeper way to the concepts and theories that shape the law. The best indicator of such views are found in opinions and articles, which are unavailing in Sotomayor’s case.

Ironically, I am most drawn to her not because of her inspiring life or her performance as a student. As a litigator, I am delighted with her experience as a litigator and trial judge. In that sense, she brings a certain professional reality to the Court the way that Fortas, Marshall, and a few other justices did. While she is not my top choice, she is the nominee and I believe Obama has selected someone who meets any reasonable standard for confirmation.

Claim: Anonymous sources should not be considered in reviewing Sotomayor’s background as a judge.

I have long been a critic of personal attacks based on anonymous sources. (I have been on the receiving side of such sources in the past). However, there have been loud criticisms of reporters who have quoted former clerks saying the Sotomayor was often lacking in knowledge or details of cases. The same criticism have been levied against lawyers who have objected that she is allegedly a “bully” and abusive from the bench. There are times when anonymity is an understandable prerequisite for sources. While I do not like personal or salacious or clearly malicious stories based on such sources, few lawyers (particularly recent clerks) would feel comfortable offering criticisms of a sitting judge (or future justice) without such protection. Law firms and other judges would not look kindly on such criticism and these lawyers may argue cases before Sotomayor on the Second Circuit (or on the Supreme Court). I have previously said that I do not place as much importance on temperament as some others. I am more concerned with finding jurists with a deep vision of the law. However, the annual reviews of judges by the bar are anonymous because it is understood that anonymity is the prerequisite for such professional reviews from attorneys.

99 thoughts on “Confirming Nonsense: Both Liberals and Conservatives Distort Debate Over Sotomayor”

  1. seamus wrote, in part:

    “But riddle-me this Batman, is there any instance where one can say that one would make a better judge because one is a white middle ( or upper ) class male? Is there a single instance you could think of where anyone would get away with that statement?”

    Yes, in my opinion I think that would apply to Professor Turley, specifically in this instance. Although I know much less of the others’ published legal opinions and legal standing, I would still most likely include many of the middle-to-upper class white male lawyers who post here as capable of judgeships at different levels of the judiciary (no lists because I might leave someone out).

    It does not bother me in the least what Ms. Sotomayor said, because in large part it is factual regarding a certain proportion of her legal deliberations. Similarly, I think that accomplished middle-to-upper class white males can make certain claims based on experience, educational excellence, and all of the other measures with which we judge accomplishments. In today’s world, can such a male state that publicly? Almost assuredly not, but I think such proclamations are factually correct, in many instances.

    That is why I want more diversity on the Supreme Court and in the other branches of government, as long as there are stringent qualifications to which all applicants and nominees are equally subjected. Ms. Sotomayor has exceeded all of the reasonable measures to become a Supreme Court Justice, notwithstanding her comments that—to me—say she is just more honest than most and that should matter a great deal to all of us.

  2. Dear Formet Federal LEO,
    Point taken. I believe we all favor those who we have more in common with. I don’t know that this makes one “racist”. I always thought one was racist if one automatically thought thoses of a different race or ethnicity were automactically inferior or evil because of that mere distinction.

    I think one can have a special pride in, or comfort level, with their own race/ethnicity without being racist.

    But riddle-me this Batman, is there any instance where one can say that one would make a better judge because one is a white middle ( or upper ) class male? Is there a single instance you could think of where anyone would get away with that statement?

    I guess being a white middle class male must make me an inferior lawyer as well. I guess my parents should have stayed in Puerto Rico where both my mother and I were born so I could claim a more “authentic” heritage, transforming me into a super lawyer.

    My wife’s Puerto Rican too. But alas, my son has blond hair and we live ina nice suberb outside of Chicago. I think I need to move us back to some bullit ridden area of Humbolt Park so he can fully realise his potential.

  3. Thank you, Prof Turley, for updating your essay on Justice Sotomayor and for clarifying your positions.


    PJT wrote:

    “I am afraid that Lorn will have to go to one of the same sites — on the left and the right — that appear to cater to personal attacks and juvenile name calling.”

    We all should remember that many people read and/or link to this blawg. Since it is “THE #1 LEGAL THEORY AND LAW PROFESSOR BLOG OF THE TOP 100 LEGAL BLOGS BY THE ABA JOURNAL” I think that we must keep very high standards.

    If the standards continue to decline—as they have recently—I will be a strong written and voting opponent of this site during next year’s vote. After all, this is a blawg dealing with legal theory and practices and as such, honesty and integrity–to the hightest extent the blogosphere is capable–must be paramount.

    I have learned an abundance of legal opinions here and the attached essay and relevant comments are excellent examples of what this site is capable.

    Realistically, what people post here is somewhat reflective of the blawg’s host and his worldview, temperament, and biases.

  4. Buddha, RCampbell, FFLEO & Mespo,
    Thank you. Though I had to go to Wiki myself to get backup on dates, this is stuff that many Jews grow up with because of our checkered history. While in the US well celebrate 1492 as the year Columbus took off to find America, among Jews it’s the year we were driven from Spain by Isabella and hubby. Those Jews that agreed to convert and stay were called “marano’s” and were constantly under surveillance by the Inquisition to determine if their conversions were a smokescreen. Portuguese Jews suffered similarly.

    Part of what I think separates committed (self identifying) Jews (like myself) from their fellow citizens is that what to us is our history absorbed as we grew, is really unfamiliar to the non-Jews around us. This has some bearing on Christian teachings, but I think it is that in our smallness in numbers, our history is of little importance to the rest of the world.

    That Jews have succeeded in many fields at rates way beyond our numbers is true because we are one of the few religions and cultures where literacy is a basic need for worship. Due to this Jews prize scholarship above all else. That is why in general we are successful, but in today’s America, with the influx of Asian citizens we see Asian children excelling at similar rates. This is because culturally the Asian immigrants see education as the path to success also.

    In the end with all our personal/cultural histories humanity is pretty much equal despite genetic heritage, it is the hater’s and the oppressors who cause the internecine strife.
    Nevertheless, I appreciate your kind words and your willingness to delve further on your own into Jewish history.
    Jews believe all righteous people are loved by God (I’m using this metaphorically)so we don’t proselytize, but as a small group we are egotistical enough to enjoy people’s attention.

  5. AY:

    Well watch a kid from our area on the Tigers named Justin Verlander. He’s been pitching that hard since I first saw him in Little League. Nice Italian kid too.

  6. Sir off to bed for me, I have to rest up for a Ranger Ball game Saturday night. They presently are in the AL 1st so lets see how long this goes. Personally I would like to see the Tigers take it all. They do have a FAR SUPERIOR CLUB than all of the rest.

    You do amaze me, well everyone does. Some just more than others.

  7. Mespo72Cubed,

    Somebody’s creating trouble, I can’t wait for the swath of the scythe. Heads will roll I tell you. ROFLMAO. Oh but then you will probably get away with it because you are an Original. You sly dog you. lol

  8. JT:

    My pitiful reply was an attempt to infer to our trollish friend that in the “country” I call home such name-calling and inane commentary have no place. Oh well back to listening to a fine video speech by Kofi Annan on the issue of world hunger. Good evening!

  9. Darn you JT your editing pen takes away all my fun with the clan of the troll-bear. Give a tired old litigator a break, will ya? I just spent all day in dec action hashing out the finer points of insurance law. Can’t I stomp one little troll??

    1. Even the threat of your leaving the country was too much to bear. We would all have to abandon the site and gradually go insane from unspoken thoughts.

      I am afraid that Lorn will have to go to one of the same sites — on the left and the right — that appear to cater to personal attacks and juvenile name calling.

  10. lorn:

    “MESPO, GET the F out of our country you moron.”


    Given you nonsensical commentary and illiterate, invective-filled, juvenile ramblings I can say with utmost assurance I am not now, nor have I ever been, a denizen of your “country.” Wouldn’t want to be either!!

  11. Mespo72Cubed,

    Thank you for the update.


    Talk to the Hand the Hand does not talk back.

  12. lorn:

    Normally I’d refute your monstrous stupidity, but like I tell my near adult kids when they posit childish remarks, just shut up already.

  13. AY:

    Actually I was at the Nemacolin Woodlands near Uniontown, PA visiting my in-laws. No camping involved but it was lots of fun. My youngest went to QB School (camp) and we got some fine instruction. All in all very relaxing, and just a warm-up for the hell week that is next week’s litigation schedule. Thanks for asking!!

  14. Looks like the doofus Obama is out to ruin the US Constitution with his ignorant appointee, Soto-may-orrr…

  15. Mespo72cubed,

    How are you this fine evening? How was camping or the trek to the woods?

  16. lorn 1, May 28, 2009 at 8:48 pm

    This lady is a true jerk. Anti-gun, Anti-abortion rights, Anti-white, Anti-personal responsibility, Anti-US Constitution!

    lorn, is that short for love*lorn? Because you are against her, I shall be for you. You have helped me make up my mind. Now after reading on this Blawg about Jewish Portageeze. I have made up my mind to have the Republican Senators from Texas both of them support her, now if I only had the power to make them do the right thing.

  17. This lady is a true jerk. Anti-gun, Anti-abortion rights, Anti-white, Anti-personal responsibility, Anti-US Constitution!

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