Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Judge Sotomayor spent most of Tuesday being harangued by Republicans on the Senate Judiciary Committee about that "wise Latina" comment. Never mind that both Samuel Alito and Clarence Thomas made virtually identical statements not just in a speech years before they were nominated but during their confirmation hearings, claiming that their background of growing up both poor and part of an ethnic or immigrant group that had faced discrimination would make them more empathetic and wise judges.
Glenn Greenwald points out, quite correctly, that Alito cast a vote in the Ricci case that could well have had implications for this - if the Republicans applied their criticisms consistently, which of course they refuse to do.
At his Senate confirmation hearing, Sam Alito used his opening statement to emphasize how his experience as an Italian-American influences his judicial decision-making (video is here):But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country" . . . .
When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.
Two weeks ago, Alito cast the deciding vote in Ricci v. DeStefano, an intensely contested affirmative action case. He did so by ruling in favor of the Italian-American firefighters, finding that they were unlawfully discriminated against, even though the district court judge who heard all the evidence and the three-judge appellate panel ruled against them and dismissed their case. Notably, the majority Supreme Court opinion Alito joined (.pdf) began by highlighting not the relevant legal doctrine, but rather, the emotional factors that made the Italian-American-plaintiffs empathetic.
Did Alito's Italian-American ethnic background cause him to cast his vote in favor of the Italian-American plaintiffs? Has anyone raised that question? Given that he himself said that he "do[es] take that into account" -- and given that Sonia Sotomayor spent 6 straight hours today being accused by GOP Senators and Fox News commentators of allowing her Puerto Rican heritage to lead her to discriminate against white litigants -- why isn't that question being asked about Alito's vote in Ricci?
Also: if empathy is irrelevant to judicial decision-making, why are GOP Senators calling Frank Ricci as a witness at this hearing? Since he's obviously not there to testify about the strict legalistic doctrines governing his claims, but instead is only there to trumpet the facts that make him "sympathetic" so that people will emotionally react against Sotomayor's ruling (his dyslexia, the amount he spent on books and tutors, his hopes for a promotion), isn't everything he has to say totally irrelevant pursuant to the GOP's alleged judicial principles?
Good questions, all.
Politics
Comments
Ed:
Since I do not read reichwing screeds if I can avoid them, I will leave it up to you to notify us when the reichwingers start talking about the "Magic Latina".
Sam Alito, like Thomas, Roberts and Scalia said what he thought would get him on the SCotUS, not what he really thought.
What is somewhat funny, to me, is the notion of a "liberal" judge. I've never met a judge who is "liberal" in any sense that the reichwing would call liberal. Liberal judges, as far as I can tell, are still pretty damned conservative. Conservative judges (folks like ex-judge Roy Moore), otoh, are full throated whackaloons.
Posted by: democommie | July 15, 2009 10:02 AM
Should have read:
"I've never met a judge who is "liberal" in any sense that anyone not in the reichwing would call liberal."
Posted by: democommie | July 15, 2009 10:04 AM
Posted by: Herod the Freemason | July 15, 2009 10:07 AM
Herod stated:
Especially given that, according to Judge Sotomayor in her hearing yesterday, the SCOTUS majority used at least an argument that was not available to Sotomayor*, her peers, and the trial court judge, as is the SCOTUS's prerogrative, but not the lower court judges.
*I don't remember her exact words, so I'm not sure if the SCOTUS majority overturned a precedent that confined the lower courts or came up with some creative argument the lower courts didn't feel empowered to offer. I'm disappointed that Volokh's bloggers or others I read didn't break down the Ricci decision relative to the lower courts' opinions.
Posted by: Michael Heath | July 15, 2009 10:32 AM
Try to think of it as not so much a "confirmation hearing," as we all know that a) she has the votes for confirmation, and b) none of the goof-ball Senators is actually qualified to express any sort of actual opinion on her 20+ year record as a prosecutor and judge.
I think of it more like an old-fashioned Friars' Club roast, like of Milton Berle or Sammy Davis Jr. or something.
It's the last chance for all of her old D.C. buddies to stand up and rib her over an old screw-up, or riff on some old Beltway gossip, or get in one last "zinger" before they pack her off to rest comfortably with the other mannequins in semi-permanent retirement at the Supreme Court Rest Home.
All of your favorite stars of D.C. are there, too! Franken, Hatch, Coburn - I can't wait until Carol Channing and Moms Mabley get their chance to give ol' Sotomayor a bit of a comedy whoopin'! And Dino, of course. Always good for a laugh.
You know you're gonna want the DVD.
Posted by: threetorches | July 15, 2009 12:03 PM
I don't see how they can criticize Sotomayor too much for her judgement in a case which was split 5-4 at SCOTUS.
Didn't you hear Herod, even though the actual vote was 5-4, and they revised the standing of law in the case while at the same time recognizing that the 2nd district basically wrote a good opinion, the case was ACTUALLY 9-0 and the Supreme Court ruled that Sotomayor was a racist... I know it's true, I heard it on Rush!
Posted by: dogmeatIB | July 15, 2009 12:18 PM
Today they were riding her hard about 2nd amendment incorporation and then she continues to give BS non-answers.
Posted by: Oatwhore | July 15, 2009 2:02 PM
Journalist Dennis King on Sotomayor's links to a strange Marxist psychotherapy "cult" group.
King is the author of the book _Lyndon LaRouche and the New American Fascism_.
Posted by: Jim Lippard | July 15, 2009 3:09 PM
Oatwhore - please explain precisely how her responses regarding the 2nd Amendment are different from her answers on other issues where she argues she can't take a position without prejudicing future litigants to the court. Or please explain why she should answer questions directly in spite of the fact that area of the law is unsettled and there are future cases winding their way up through the courts. Otherwise you come off as ideologue looking for an excuse to dismiss her for the exact same reasons that cause frustration to all sides and even though all recent nominees have done the exact same thing.
Posted by: Michael Heath | July 15, 2009 3:11 PM
Oatwhore:
If her answer was anything like her answer on abortion, it was a perfectly acceptable *legal* answer for someone being pointed to a judgeship. It's only a non-answer to the extent she was being asked a question about personal beliefs that should, at least in some sense, be irrelevant.
Because she was asked a legal question. About the law. For a law job.
Posted by: Brian X | July 15, 2009 7:32 PM
Pathetic is how I see these hearings. I understand and accept that the Democrats don't have to try too hard to get her though the hearings so I don't have very high expectations from them. The Republicans are just plain shooting blanks. During the short time I was able to listen to the hearings yesterday, I got to hear a Senator (Hatch?) parsed her speeches to show that she would go all emotional Latino female (my version of what he was doing) on us, give me a break. The Republicans have been reduced to repeating (ad nauseum) their Presidential platform and trying to improve their street cred with their homies.
I also loved the fact that NPR reporters were laughing over the inanity of the hearings during this morning news report.
Posted by: jufulu, FCD | July 15, 2009 8:14 PM
In defense of one Republican, I thought Grassley's questions regarding property rights was both respectful and informative. I also like Franken's questions and glad he had a joke at the start. I was disappointed in Feingold's first half of questions, he's normally one of the best inquisitors at these farces, but he was good in the second half.
Franken could become a populist hero in the best sense of the word. Given I despise populism as a movement, I'm surprised I just wrote that.
Posted by: Michael Heath | July 15, 2009 9:56 PM
I got the impression that Sessions was just not going to give up on his "wise latina" line of questioning until Sotomayor threw up her hands and yelled, "I give up. Yes, I'm a racist. I'm a racist."
These guys really, truly think they are being reasonable in asking Sotomayor to prove that she will not let her life experience influence her objectivity because they believe that "middle- and upper middle-class white guy" is the "default setting" for thinking and being. Everything else is a custom configuration that needs to be fixed.
Posted by: Gerry L | July 15, 2009 11:08 PM
It's not about honest inquiry at this point. They know they can't stop her from being confirmed, so the only option left is to hammer at the idea that she might hate white people, to try to taint her SCOTUS term in the eyes of their followers.
Posted by: Aaron M | July 16, 2009 9:52 AM