Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The New York Times reports that President Obama has chosen Judge Sonia Sotomayor as his nominee to replace Justice Souter. Sotomayor is a judge on the 2nd Circuit Court of Appeals. If confirmed, which seems a near-certainty barring serious scandal, she will be the first Hispanic justice to serve on the Supreme Court.
Sotomayor's life story in many ways mirrors that of the president himself. She was raised by a single mother in a decidedly unprivileged environment but ended up graduating summa cum laude from Princeton University and went on to Yale Law School. Interestingly, she was first nominated to the federal bench by the first President Bush in 1991, then elevated to the appeals court by President Clinton in 1997.
She will no doubt be immediately attacked as an "activist judge," a commonly heard code phrase with no serious meaning. Indeed, the Times reports that it has begun even before the pick was announced:
"Judge Sotomayor is a liberal activist of the first order who thinks her own personal political agenda is more important than the law as written," said Wendy E. Long, counsel to the Judicial Confirmation Network, an activist group. "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."
But in reality, the Republicans have little chance of derailing her nomination. The Democrats control 59 votes in the Senate (likely 60 by the time the nomination is voted on because Al Franken will likely be seated by then) and many Republicans will be reticent to take a strong stand against the first Hispanic woman to serve on the Supreme Court given the size of the Hispanic voting bloc in this country.
Of course, being the genius that I am, I posted a blog piece saying the nominee would be Diane Wood about 45 minutes before Sotomayor was announced. Oops. I'll have a more thorough analysis of her record of rulings and opinions in the next couple days.
Comments
Apparently, Ms. Sotomayor will not be the first Hispanic on the Supreme Court. Benjamin Cordozo was a descendant of Portuguese Jews. Of course, if the term Hispanic is restricted to Latin America, then Ms.Sotomayor will, in fact, be the first Hispanic on the Supreme Court.
Posted by: SLC | May 26, 2009 10:45 AM
Don't feel bad, Ed. I was right there with you thinking Wood and Kagan were the front runners. If I publicly announce my belief that someone is a favorite to be nominated, that pretty much assures she won't be the nominee.
Posted by: Dan | May 26, 2009 10:48 AM
SLC: I'm pretty sure "Hispanic" means "of the Spanish-speaking speaking world" and excludes Portugal, Brazil and the former Portuguese colonies.
Posted by: Matt Heath | May 26, 2009 10:58 AM
Posted by: Paul Lundgren | May 26, 2009 11:00 AM
Some background, from CNN. http://www.cnn.com/2009/POLITICS/05/26/sotomayor.resume/index.html?eref=rss_mostpopular
The article doesn't say whether she is Roman Catholic.
Posted by: kehrsam | May 26, 2009 11:01 AM
Shorter version of Wendy E. Long's quote:
'"Danged activist Judges(tm)." said Wendy E Long, counsel to the Judicial Confirmation Network, an activist group.' - :) DJ
PS I look forward to your report on her decisions, Ed. But, please, write it so even foreigners with little reading ability, and less brains, can understand it (for my sake).
Posted by: DingoJack | May 26, 2009 11:08 AM
Note that Wendy E. Long characterizes the CURRENT court as "liberal activist." If a court headed up by Roberts is liberal, I'm not sure what to think anymore.
Posted by: Drew | May 26, 2009 11:26 AM
I can hear it now:
"She's another Souter! The proof: she was first nominated to a federal judgeship by George H.W. Bush!"
Posted by: Pierce R. Butler | May 26, 2009 11:29 AM
Actually, I think the official definition of "activist judge" is "any judge who ever, at any time, made any ruling that Rush Limbaugh didn't like."
Posted by: MTS | May 26, 2009 11:31 AM
I appeared before her once and she gave me a hard time and ruled against me. That proves, of course, that she lacks judicial temperament, intellect, and respect for the rule of law. Despite that, I look forward to the nomination proceeding and wingnut heads exploding.
Posted by: CJColucci | May 26, 2009 12:16 PM
I would go even farther MTS. It's "any judge who ever, at any time, made any ruling that Rush Limbaugh didn't like or was nominated by a Democrat."
Posted by: MyPetSlug | May 26, 2009 12:20 PM
CJColucci - I laughed at that.
Posted by: Dave | May 26, 2009 12:38 PM
@SLC
I've seen that three times in the last hour - all on wingnut websites. Cordozo was a Portuguese Jew who's family immigrated to the US in the 1750s. Last time I checked Portugal didn't speak Spanish. At I doubt Cordozo did either considering how long his family was in the States prior to him being born.
Interesting guy tho - I heard of him before but never dug deeper into who he was.
Posted by: yoshi | May 26, 2009 1:12 PM
Re: Cardozo/Hispanic. Besides, he was Jewish. As far as I know, he may not even have had any Portugese heritage.
Posted by: James Hanley | May 26, 2009 1:50 PM
OT, but the california Supreme Court has just ruled in favor of Prop Hate -- but also that gays who nwere married are still married.
As i said on another blog, I don't see how, given the Amendment Process Nightmare in California, they could have ruled any other way. (This, like their original decision, really seems to be law-based and not sentiment-based.)
But, from a political standpoint, the fact that the decision was -- and was stated as -- compelled by the process, and that, to quote the ruling ""In a sense, petitioners' and the attorney general's complaint is that it is just too easy to amend the California constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it" may be very significant. Pointing to the amending process -- when many Californians have seen what the anti-tax Amendments have done - may bring over many allies who simply didn't care, one way or the other, about gay marriage.
Posted by: Prup (aka Jim Benton) | May 26, 2009 2:03 PM
James Hanley:
WTF!!!
I have, in the past defended your contributions, even praised them, but, unless your comment was meant as pure snark, this may be the most anti-Semitic comment I've seen frrom a regulsr participant here -- not a wingnut troll.
What's worse, it is the type of anti-Semitism it embodies, the 'racial anti-Semitism' and 'Jews are outsiders, never truly citizens of the country, incapable of being "true' Portugese -- or German' form that makes it stink so obnoxiously that it will cling to you, at least in my eyes.
Posted by: Prup (aka Jim Benton) | May 26, 2009 2:15 PM
The pffft! of All Knowledge, Wikipedia, says:
So you might be able to argue that using the commonly-accepted definitions of the time (assuming The pffft! of All Knowledge is correct-ish) she would be the second.
It's ambiguous whether or not Brazil wws meant to be included in the “[s]till more recently…” definition: Brazil is in South American but the majority of the population doesn't speak Spanish.
Not that any of this is terribly important, just interesting.
Posted by: blf | May 26, 2009 2:16 PM
I'm sure there were many clubs Benjamin Cardozo couldn't get into because he was Jewish. I doubt there were many he couldn't get into because he was Hispanic.
Posted by: CJColucci | May 26, 2009 2:22 PM
OT Ed but please objectively comment soon as you can on Cal SC upholding Prop 8.
I am hetro married male about 40 years with my beloved wife .. boring and straight and male as a male can be ... but I am a love and commitment and freedom advocate. I am literally about in tears.
They voted to allow a slim majority mostly voting their prejudices against a false stereotype to strip the rights of a minority away -- for no good secular reason at all - NONE!!!!!
I an sickened.
Posted by: ConcernedJoe | May 26, 2009 2:23 PM
@blf (#17):
Brazil was never ruled by Spain (google Tordesillas), and speaks Portuguese, not (in any sense) Spanish. It fails on all counts to fit the definition (the reference to South America was description, not definition).
Posted by: Robin Levett | May 26, 2009 2:26 PM
Beg to differ, Ed. I read it to mean, "pro-abortion." Maybe I'm being too simplistic, but it sure sounds right to me.
I think that was Ed's point. "Activist judge" is simply right-wing newsspeak for any judicial figure whose rulings displease social conservatives. The term "activist" is tacked on in order for the concept to carry more weight and be taken seriously by the mainstream. Otherwise, it makes absolutely no sense (all judges are "activists").
Posted by: Sadie Morrison | May 26, 2009 2:27 PM
Speaking of which,
"Judge Sotomayor is a liberal activist of the first order who thinks her own personal political agenda is more important than the law as written," said Wendy E. Long, counsel to the Judicial Confirmation Network, an activist group.
Did anyone else chortle over this?
Posted by: Sadie Morrison | May 26, 2009 2:32 PM
Sadie, another term they like to bandy about is that judges whose rulings displease social conservatives are "out of touch." In other words, if your rulings do not reflect a narrow right wing agenda, you're an ivory tower elitist instead of a normal American.
Posted by: Tommykey | May 26, 2009 2:32 PM
ConcernedJoe-
While i certainly don't like the outcome in the California gay marriage ruling, I don't think the court had much choice in the case. The plaintiffs never had much of a legal argument in the case. The court was not asked to rule on whether gay marriage was good or bad, they had to rule on a technical question of state law on referendums.
Posted by: Ed Brayton | May 26, 2009 3:01 PM
Re Matt Heath
From the Merriam-Webster Dictionary:
1: of or relating to the people, speech, or culture of Spain or of Spain and Portugal
Re James Hanley
I don't know about Portugal but I can inform Mr. Hanley that currently Germans and the German Government are quite proud to proclaim people like Albert Einstein to be Germans (there's a street in Berlin named after Einstein).
Posted by: SLC | May 26, 2009 3:02 PM
Nate Silver has me giddy.
YES! The right-wing apoplexy is hilarious and the neocon tears are delicious!Posted by: FishyFred | May 26, 2009 3:04 PM
Obama picks a 54 year old diabetic. She'll be retiring around the time the next right wing fundamentalist wins the White House. He/She will then appoint a healthy 39 year old bible pounder to take her place.
Posted by: JC | May 26, 2009 3:40 PM
Obama picks a 54 year old diabetic. She'll be retiring around the time the next right wing fundamentalist wins the White House.
If that's the case, then we'll have a HELL of a lot more to worry about than a retiring Supreme Court Justice.
Posted by: gwangun | May 26, 2009 4:02 PM
For gosh sakes people! Sometimes terms like "Hispanic" refer strictly to nation of origin and sometimes they refer to ethnicity. A Portuguese Jew is Portuguese in the first sense but not in the second. James Hanley's point about a Portuguese Jew not being Portuguese is not anti-semitic; its just a reference to ethnicity. And if there is any anti-semitism in it, it would most likely be that of the Portuguese gentiles who did not consider Jews to be truly Portuguese. I, by the way, am a Jew. There's plenty of real anti-Semitism out there. We need not find it where it doesn't exist.
Posted by: Bill Poser | May 26, 2009 4:08 PM
While i certainly don't like the outcome in the California gay marriage ruling, I don't think the court had much choice in the case.
I agree. Challenging the legality of a referendum is not the route to take. We all just need to be patient and keep introducing the issue on the ballot, again and again and again. Momentum is on our side, and we will win this fight. It may just take some time.
Posted by: Sadie Morrison | May 26, 2009 4:10 PM
Obama picks a 54 year old diabetic. She'll be retiring around the time the next right wing fundamentalist wins the White House.
If that's the case, then we'll have a HELL of a lot more to worry about than a retiring Supreme Court Justice.
Posted by: gwangun | May 26, 2009 4:13 PM
"Judge __________ is a liberal activist of the first order who thinks her own personal political agenda is more important than the law as written," said Wendy E. Long.
I have a strong feeling that she has had this sentence written for about a month and was just waiting to see which name she had to use to fill in the blank.
Posted by: Iason Ouabache | May 26, 2009 4:18 PM
When people come from two different cultures/ethnicities I for one have no problem letting them choose which one (or both) they want to emphasize. Like for example Obama identifies himself as black, even if he's technically biracial. And this Benjamin Cardozo guy apparently identified himself as jewish, not hispanic - end of story as far as I'm concerned.
To then go around and whine about how they were really hispanic, or perhaps in the case of Obama, white, would be quite idiotic. Reminds me of the mormon's after death baptizing practice.
Posted by: Coriolis | May 26, 2009 4:24 PM
Jebus Ed, you were wrong about the choice, it will not be a near certainty what with the craven and borderline racist blue dogs willing to vote with the repubs and it is a certainty, if the money holds out, Colman will take it to the US Supremes and Pawlenty won't certify in that case, and the hispanic vote hasn't panicked the repubs just yet though that could change in 2010-12. If you turn out to be right I'll be the first to man-up and apologize.
But I love the hubris and optimism. Keep it up!
Posted by: Roadrash548 | May 26, 2009 4:31 PM
Thanks for legal opinions on the Prop 8 Cal SC ruling.
I am no lawyer for sure and accept more learned views of what went down and why.
But my layman's view is remains (while I accept how legally wrong and naive I may be) that Prop 8 over-stepped the bounds of what was up for grabs to change by referendum.
To my simple mind there are provisions like authority to tax that define the bounds of government to carry out their business, and then there are basic rights of the people.
I cannot get my head around a simple majority or any "simple" process taking away people rights (the latter category). To me the categories are inherently distinct and the referendum approach was to address the former - that is to check the government - and not the people.
Again - I accept if you say I am all wet. Just it seems so counter to a constitutional republic/democracy.
Posted by: ConcernedJoe | May 26, 2009 4:33 PM
This would make for six Catholics on the court.
Posted by: Herod the Freemason | May 26, 2009 4:51 PM
Re Bill Poser
So when Germans and the German Government consider Albert Einstein to be a German, they are all wrong.
However, let's look at the case of Dr. Einsteins' fellow Nobel Laureate, Luis Alvarez. The late Dr. Alvarez descended from Spanish forebears, although his family had resided in California for several generations. Would Mr. Poser consider Dr. Alvarez a Hispanic? Hispanics in California are quite proud to call Dr. Alvarez one of their own.
Posted by: SLC | May 26, 2009 6:23 PM
Brad Delong's website had a link to a link to an actual review of Sotomayor's rulings, although, frankly, I couldn't make an overall sense of her tenor. (I'm not a lawyer, although I have written exams in law school classrooms).
Here it is at SCOTUSBLOG:
http://www.scotusblog.com/wp/judge-sotomayors-appellate-opinions-in-civil-cases/
Posted by: stewart | May 26, 2009 10:23 PM
Einstein wasn't German?
Because he was Jewish?
I'm sorry, but that just doesn't make sense. Are Jews not qualified to be addressed by the adjective describing the country where they were born and raised?
Posted by: RickD | May 26, 2009 10:43 PM
It's interesting that the Obama administration is selling her as a conservative...
Posted by: Josh | May 26, 2009 11:30 PM
Without knowing definitively if she's done jury duty, and certain at this point that she's never been a defendant, I learned today that she's filled pretty much every other possible role in any given court session. Between that, recollection of the kind review and confirmation of Ginsberg under Orrin Hatch's leadership at the time, and the way we were sold on Roberts and Alito on intellectual grounds, I'm dismayed to see Rush, Beck et al move so quickly to call her everything from unqualified to stupid, even at a moment when Senate Democrats actually have straight-talk on their side, for once.
Posted by: Jon Lester | May 26, 2009 11:45 PM
I'm sorry, but that just doesn't make sense. Are Jews not qualified to be addressed by the adjective describing the country where they were born and raised?
Although in today's world the idea that someone wouldn't be considered a citizen because they are Jewish seems silly -- it was the way things were in many areas of the world until the 20th century. Sephardic Jews (those in Portugal) where most likely NOT considered citizens during the 18th century -- and were subject to summary extradition and worse throughout much of Portugal's history. Citizenship to Jews is a relatively recent (and positive) development in much of the world.
Posted by: Dan R. | May 27, 2009 1:05 AM
I'm sorry, but that just doesn't make sense. Are Jews not qualified to be addressed by the adjective describing the country where they were born and raised?
Although in today's world the idea that someone wouldn't be considered a citizen because they are Jewish seems silly -- it was the way things were in many areas of the world until the 20th century. Sephardic Jews (those in Portugal) where most likely NOT considered citizens during the 18th century -- and were subject to summary extradition and worse throughout much of Portugal's history. Citizenship to Jews is a relatively recent (and positive) development in much of the world.
Posted by: Dan R. | May 27, 2009 1:08 AM
Well, to get all anal about it, Einstein was born at Ulm in the Kingdom of Württemberg, and spend a good portion of his life in Munich in the Kingdom of Bavaria. Both ceased to exist after 1918, when he was 39 years old. However the 'Federation of German States' existed 8 years before he was born (1871), although when 'Germany' existed as a entire, singular country, I don't know (1918?).
Sadie Morrison (#22), yes I laughed at that too (see #6) :).
Posted by: DingoJack | May 27, 2009 1:13 AM
uhh - let me clarify - both Kingdoms ceased to exist after 1918. Munich and Ulm, of course, still exist. ["Apologies to those connected with those fine old cities." says Silly Old Dingo (SOD)*.] - :( DJ
*Sod's Law in action.
Posted by: DIngoJack | May 27, 2009 1:23 AM
Einstein chose to become an American citizen in 1940 and resided in the US the rest of his life although he did retain his Swiss citizenship.
Being completely opposed to nationalism however he probably considered himself a citizen of the world.
I also detest nationalism and jingoism but still I can't help feeling a little smidge of pride thinking that he chose to become an American.
Posted by: Lance | May 27, 2009 2:44 AM
SLC, Fair enough. I guess the dictionary wouldn't have the more inclusive usage it if it didn't exist. I suspect the folks here in Lisbon would be indignant at being included in a term that is etymologically the same as "Spanish", but then again they habitually call Scots and Welsh "ingleses" so they aren't very firm ground complaining.
Posted by: Matt Heath | May 27, 2009 5:22 AM
Re dingojack
Just for Mr. dingojacks' information, Germany was united as one country in 1871, subsequent to the Prussian victory over France in the Franco-Prussian War, when Wilhelm I was crowned Kaiser Wilhelm I at Versailles.
Posted by: SLC | May 27, 2009 6:24 AM
The Dems need to frame her as the Judge that saved baseball. At the very least, she'd get George Will's support.
Posted by: kehrsam | May 27, 2009 7:56 AM
SLC - You really are the captain of comprehension aren't you? ;) - DJ
Posted by: DingoJack | May 27, 2009 8:50 AM
Thank you, Bill Poser.
No, my comment was certainly not intended as an anti-semitic remark, nor was it intended to say that Jews cannot be citizens of the country in which they lived.
But there is a difference between nationality, in a legal sense, and ethnicity. And hispanic refers to ethnicity, not nationality. Assume I became a citizen of Mexico--I could legitimately claim to be Mexican, but I could not legitimately claim to be hispanic.
So in reference to Cardozo, all I was really saying is that if all his ancestors were Jewish, then he would not be hispanic, even though some of his ancestors clearly were Portugese in a legal sense. Of course it's possible there was some intermarriage, so that Cardozo was in fact hispanic as well (if Portugese counts as hispanic, which seems to be a matter of debate). I don't know his ancestry well enough to say.
Re: Einstein, the same argument would apply. Certainly he was German. But was he Germanic or teutonic? Maybe, but without knowing the details of his ancestry, who could say?
Of course some argue for cultural nationalism/ethnicity as well. So the fact that Einstein was a native German speaker and (I assume) a product of German culture would for some people make him Germanic. And perhaps the same argument would apply to Cardozo as well. The value of this approach is that it does shift our attention away from the biological concept of ethnicity, which is somewhat defensible in itself but risks reifying the much less defensible concept of race as a biological reality.
But an anti-semitic argument? No, you'll never hear one of those from me. I promise.
Posted by: James Hanley | May 28, 2009 7:44 PM