Review of Sotomayor: Huh?

Below is the context from Sotomayor. Thanks, Ray.

Here is George Will on the some relevant matters. I like the article as it agreed with me on many matters.

It seems Sotomayor is a board member of La Raza, The Race, which is dedicated to Mexico's recovery of the Southwest and the importation of illegal aliens (and getting them the right to vote.) This is all I need to hear. Ms. Sotomayor has put herself into the political game, not me, assuming the journalists I read were correct. I really can't believe a sitting judge would be on the board of any politically active organization, left or right. I don't know if this is normal, or not.

La Raza is the equivalent of the KKK. Read up on our La Raza friends who consider English an abomination, an insult.

Read over the context. I find it supportive of my concern and it does not look like it was an unfair lifting of a small quote, though context is always important.

Of interest is her reference to Cardozo as voting for sexual and racial discrimination. This statement has several levels of importance.

First, it is a reference to the first Hispanic on the Supreme Court. Has anyone mentioned this? Second, a judge does not vote for a policy; indeed, if push comes to shove the term "vote" is a poor choice of words. There is a decision, not a final tally. Third, the Supreme Court decides very narrow issues where rights must be balanced. It does not "vote" on what it thinks should be policy. This is the key difference between the traditionalist and the "activist."

Underlying societal matters are close to irrelevant. The Court does not vote on social matters and legal trends, or, at least, it should not. Cardozo did not vote in favor of discrimination; that is absurd. He may have voted on an issue that some activists didn't like so they characterize the result as discriminatory; hence, Sotomayor says he voted in favor of discrimination.

Sotomayor: Personal experiences affect the facts that judges choose to see.

Cardozo was a brilliant, Sephartic Jew, from the streets of New York City, hardly someone who could be characterized as a old white prejudiced man. He had to fight his way through his early life. To besmear him is personally offensive as it is not merely stupid, it is a manipulative attack on the honor of a fine man for political purposes. This may be Democratic politics, but it remains a primitive tool of the manipulative.

Even those who favored assisting blacks or who favored reverse discrimination, could not vote against Bakke in the late 1970s - if they were traditionalists. One's political views are not on trial in an appeal, or they should not be.

In the Bakke case, there was clear race-based reverse discrimination as Bakke was denied admission to medical school in California. The court's decision opined, not held, that states could create paths to assist black students, but that the case presented for decision had the admission, the legal meaning, by the State University system that were it not for the race-based policy, Bakke would have been admitted, as he qualified. He was denied entry because of his race, using a percentage or numerical quota, I forget which. Is this so hard to understand?

The decision was - a person cannot be denied his rights on the basis of sex.

It was as simple as that. This is exactly what Sotomayor is whining about in the excerpt below. The decision was he has to be admitted, regardless of social intent, because it was admitted he was qualified and rejected because he was white.

The personal rights of citizen Bakke had been abused by the State, something Sotomayor should understand as being offensive. This view of personal rights is under assault today, unless you are claiming a popular right, one you 'vote' on, but that is anathema to our original Consitution. Sotomayor disagrees with Bakke, based upon a recent decision going to the Supreme Court:

...Citing the Civil Rights Act and the 14th Amendment to the Constitution, the affected firefighters sued the city claiming racial discrimination. The officers had other allies who joined the lawsuit, the Cato Institute, the Reason Foundation and the Individual Rights Foundation. They said the city blundered by ignoring the valid results of a test that was race-neutral.

However, Sotomayor said the city could discriminate if it produces an acceptable racial mix. The decision is being appealed....

[If she is a new justice, she will not be able to review herself. So far, the poop is conservative judges don't follow this decision at all. This could make for an interesting day at the Supreme Court. Bakke will return. Don't forget, all depends on the issue presented, not the support for reverse discrimination or race preference, as it is positioned.]

In law school, I gave a talk on Bakke and just explained the facts and decision of the majority. I was met by a weird distress, an illogical rejection of the opinion based on the notion that black students should be permitted to take advantage of the quota system. The lecture was to a large audience and only a few were adamant.

I remember one friend, an exceptionally sharp student, had lost all her training and basically attacked the decision on an "ends" analysis. People were arguing with me as though this was some evil position that I had by explaining it. Very revealing. Mr. Spock must have a hard time dealing with earthlings.

The knee-jerk reaction shows a complete failure of understanding as to what the role of the Court is, even after taking Constitutional law. I am sure those who objected are now politicians and judges. This is the problem. It all comes down to sloppy thinking - or clever political control.

Sotomayor:

In our private conversations, Judge [Miriam] Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. [Huh?] I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice [Ruth Bader] Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment. [Huh?]

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. [There you have it.] Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. [So? Stupid and meaningless attack] I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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. [This is gibberish. She is not sure, but is sure, but agrees what she is sure of can't be defined. If she gets in, I hope she has good clerks.]

Let us not forget that wise men like Oliver Wendell Holmes and Justice [Benjamin] Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. [So? Perhaps, it court was deciding issues, not voting for women.] I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. [Huh?] Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown. [And the Court changes its decisions, which it did. So?]

However, to understand takes time and effort, something that not all people are willing to give. [OK, this is -10 points in a course on writing. What is she talking about?] For others, their experiences limit their ability to understand the experiences of others. [There goes another 10 points. This is painful.] Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.

The conclusion does not follow, nor is there one that makes sense. The use of the word "hence" adds nothing. It does suggest a prior argument, the absence of which suggests lying or confusion.

The proposition she "proved" is: that a difference there will be by the presence of women and people of color on the bench.

This sounds like Yoda on martinis. I can't say, but the proposition may also include: Personal experiences affect the facts that judges choose to see.

This is terrifying. Experience affects facts (it changes facts?)....the facts that judges choose to see (but doesn't change facts you won't see?). What? It is no wonder La Raza is offended by English.

Like I say, a judge oversees the correct application of due process, procedures, and constitutional protections. He or she does not interpret any facts in a case other than the narrow legal issue presented by the appellant.

Well, he or she shouldn't.

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I found an analysis through the site feministing.com, so it is a politically correct summary. There is a listing of cases of interest. There was also a note that every candidate on Mr. Obama's list was a women, proof of a political selection, which is perfectly acceptable to the challenged.

It is interesting in that the Supreme Court will be deciding if the Second Amendment applies only to federal action, not the state, as the Court, including Sotomayor held and NYS/Cuomo argued. The issue is whether NYC can regulate nunchcks, Chinese wheat farmer's tool useful as a weapon. The Defendant argued he had a second amendment right to bear arms. The Court said he did not.

I would have to dust off the books, but it seems to me the bill of rights has been fully extended to cover the states, thanks to activist judges who thought that was a way to push civil rights. I don't recall there being a selection of rights applicable to control the state. Just a few years ago, Rutland, VT, was told its gun control law was unconstitutional. Anyway, one can't assume any report on these cases is accurate. Again, it is the narrow issues presented that the Court will review. Below, it appears the case is being brought to the Supreme Court "a certiorari," a curious basis for a claimed violation of Constitutional rights. But, what do I know?

Second Amendment: Sotomayor was also a member of the panel that issued a per curiam opinion in another controversial case that may be headed for the Court next year. In Maloney v. Cuomo, 554 F.3d 56 (2009), the panel considered (as relevant here) a claim by a New York attorney that a state law prohibiting possession of a chuka stick (also known as nunchaku, a device used in martial arts consisting of two sticks joined by a rope or chain) violated his Second Amendment right to bear arms. The district court rejected the claim on the ground that the Second Amendment does not apply to the states. On appeal, the panel affirmed. Relying on the Supreme Court’s 1886 decision in Presser v. Illinois, it explained that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms. The Supreme Court’s recent decision in District of Columbia v. Heller, the court continued, “does not invalidate this longstanding principle.” And while acknowledging the possibility that “Heller might be read to question the continuing validity of this principle,” the panel deemed itself bound to follow Presser because it “directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.” Maloney’s lawyers intend to file a petition for certiorari in late June.