David Kirkpatrick of the NYTimes writes one of the more remarkable (in a bad way) articles yet on Judge Sonia Sotomayor. Kirkpatrick writes:

The selection of Judge Sonia Sotomayor for the Supreme Court has opened a new battle in the fight over affirmative action and other race-conscious remedies for patterns of inequality, with each side invoking the election of the first black president in support of its cause.

Really? Why would that be? Actually what the Sotomayor nomination truly highlights is the wholesale adoption of judicial activism by extreme conservatives to roll back through judicial means race conscious remedies enacted by the elected representatives of the people. The champion of this judicial activism is none other than Chief Justice John Roberts. More . . .

Byron York writes:

In 2001, President George W. Bush nominated former Justice Department lawyer Miguel Estrada to a seat on the federal courts of appeals. . . . [S]ome of the very people who are today praising Sotomayor spent their time devising extraordinary measures to kill Estrada's chances. Born in Honduras, Estrada came to the United States at 17, not knowing a word of English. He learned the language almost instantly, and within a few years was graduating with honors from Columbia University and heading off to Harvard Law School. He clerked for Supreme Court Justice Anthony Kennedy, was a prosecutor in New York, and worked at the Justice Department in Washington before entering private practice.

What Byron York will not acknowledge is that unlike Democratic opposition to Estrada, which was based on his ideology, not once did a Democrat or progressive say that Estrada lived a "privileged" life filled with "preferential treatment." Yet that is precisely what York's conservative cohorts have done to Sotomayor. When York confronts Michael Goldfarb, Fred Barnes, Bill Bennett, Rush Limbaugh, Glenn Beck, Tom Tancredo and the rest of the despicable racialists in his Party, then come back and talk to us.

Speaking for me only

My gawd, the chip on his shoulder is becoming a boulder. Stuart Taylor writes:

Princeton University was guilty of "an institutional pattern of discrimination" against Chicanos and Puerto Ricans, then-sophomore Sonia Sotomayor wrote in a letter published in the May 10, 1974 edition of the student newspaper, The Daily Princetonian. . . . Some may see the fact that Princeton awarded Sotomayor a summa cum laude degree and the prestigious Pyne Prize when she graduated in 1976 as evidence of her unparalleled brilliance in overcoming a "total absence of regard, concern, and respect" for people such as her.

And some may see Sotomayor's letter as evidence that she was predisposed to look for the worst, not the best, in the institution that had afforded her such opportunities. She now sits on Princeton's Board of Trustees.

Some may wonder if Stuart Taylor realizes what his writings say about him. Adam Serwer has more.

Speaking for me only

Please allow me to introduce the argument for empathy - for white males - Glenn Greenwald on Charles Krauthammer (see also CAC's analysis of the Ricci case):

[T]his column today from Charles Krauthammer [presents] (a) the right-wing argument that empathy and political opinions have no place in judicial decision-making and (b) the right-wing argument that Sotomayor wrongly decided the Ricci "firefighters" case because what happened to Frank Ricci was terribly unfair and because affirmative action is a bad policy.

[MORE . . .]

How soon before Texas Republican Senator John Cornyn has to abjectly apologize to Rush for this:

One of the top Republicans in the Senate, John Cornyn, is repudiating recent comments by Rush Limbaugh and Newt Gingrich which claimed that Supreme Court nominee Sonia Sotomayor is a racist. Cornyn, the chair of the National Republican Senatorial Committee, told NPR's "All Things Considered":

"I think it's terrible... This is not the kind of tone any of us want to set when it comes to performing our constitutional responsibilities of advise and consent." Cornyn dismissed Limbaugh and Gingrich, adding: "Neither one of these men are elected Republican officials. I just don't think it's appropriate. I certainly don't endorse it. I think it's wrong."

I predict Cornyn will be forced to agree that Rush and Newt are right - Sotomayor IS a "racist." Rush and Newt know about such things. Listen to the interview here.

Speaking for me only

Ilya Somin and Erwin Chemerinsky discuss the role of "empathy" in judging. In a subsequent blog post, Somin describes the chasm between them:

I fear that to some extent Chemerinsky and I are talking past each other. I don't disagree with Chemerinsky's claims that conservative justices (like liberals) sometimes base decisions on empathy and on their political ideology, and that judicial reliance on empathy cannot be completely eliminated. . . . Rather, my view is that reliance on empathy is a negative rather than a positive - whether practiced by conservative judges or liberal ones. . . . Ultimately, I think the real issue is not whether conservative and liberal judges sometimes rely on empathy (they both obviously do), but whether we should strive to reduce such reliance or increase it.

[More...]

The New York Times runs an article claiming that conservatives will attack Judge Sonia Sotomayor for her harsh questioning in oral argument. From the gang that reveres Justice Scalia, this is just rich. But Sotomayor's colleague on the Second Circuit, Judge Guido Calabresi, cuts right through the BS:

Judge Guido Calabresi, a former dean of Yale Law School who taught Ms. Sotomayor there and now sits with her on the Second Circuit, said complaints that she had been unduly caustic have no basis. For a time, Judge Calabresi said, he kept track of the questions posed by Judge Sotomayor and other members of the court. “Her behavior was identical,” he concluded. “Some lawyers just don’t like to be questioned by a woman,” he added. “It was sexist, plain and simple.”

(Emphasis supplied.) Indeed.

Speaking for me only

During the nuclear option fights of the Bush Administration era, I always argued against those who claimed that the Senate owed the President unfettered deference regarding judicial nominees. At best, the argument went, the Senate could only consider the nominee's "qualifications." I categorically rejected that view, arguing that the Senate's advise and consent Constitutional role provides the Senate not only the freedom, but the duty to consider all aspects of a nominee's record, including, maybe even especially, their ideology. After all, Senators are elected too.

I am pleased to see that the hypocrisy of the Republican position on this matter will be exposed now. For example, Republican Senator Pat Roberts (R-KS) has already announced he will oppose the confirmation of Sonia Sotomayor to the SCOTUS:

When I was at Daily Kos writing about the nominations of John Roberts and Samuel Alito to the SCOTUS, I attempted to concentrate on their views on the issues. Particularly with Roberts, I urged that the Senate demand answers on issues like privacy, executive power and other important Constitutional matters. I have never accepted the idea that because an issue could come before the Court, nominees could avoid answering questions on those matters. Unfortunately, the Sotomayor nomination discussion has been derailed by blatant sexism and racism. It should be about the issues. NYTimes' Charlie Savage reports on NARAL bringing the discussion back to the issues and demanding answers from the nominee:

Nancy Keenan, president of the National Abortion Rights Action League, urged them to pressure senators to demand that Judge Sotomayor reveal her views on privacy rights before any confirmation vote. “Discussion about Roe v. Wade will—and must—be part of this nomination process,” Ms. Keenan wrote, adding. “As you know, choice hangs in the balance on the Supreme Court as the last two major choice-related cases were decided by a five-to-four margin.”

I agree with NARAL. In addition, there are many other issues that require detailed questioning -among these executive power. Let's get back to the issues.

Speaking for me only

Via Jason Zengerle, here's an anecdote from Judge Sonia Sotomayor's law school days that demonstrates her fighting spirit:

A large Washington law firm-Shaw, Pittman, Potts & Trowbridge-has been forced to apologize to a Yale Law School senior after a student-faculty tribunal found one of its partners had asked her "discriminatory" questions focusing on her being a Puerto Rican. . . . The questions, according to the tribunal, included: 'Do law firms do a disservice by hiring minority students who the firms know do not have the necessary credentials and will then fire in three to four years? Would I have been admitted to the law school if I were not a Puerto Rican? Was I culturally deprived?" . . . Krall asked the questions of Sonia Sotomayor de Noonan, a resident of the Bronx, N.Y., who had graduated from Princeton before going to Yale Law, during a dinner in New Haven Oct. 2 with several other Yale students.

Sotomayor had the courage to stare down these racist questioners. Not an easy thing to do, especially when you are in your last year of law school.

Speaking for me only

Matt Yglesias writes:

As anyone who knows me can attest, I don’t have what you’d call a strong “Hispanic” identity. . . . But for all that, I have to say that I am really truly deeply and personally pissed off [about] the tenor of a lot of the commentary on Sonia Sotomayor. The idea that any time a person with a Spanish last name is tapped for a job, his or her entire lifetime of accomplishments is going to be wiped out in a riptide of bitching and moaning about “identity politics” is not a fun concept for me to contemplate. Qualifications like time at Princeton, Yale Law, and on the Circuit Court that work well for guys with Italian names suddenly don’t work if you have a Spanish name. Heaven forbid someone were to decide that there ought to be at least one Hispanic columnist at a major American newspaper.

I do have a strong identity with my hispanic background and have been in a rage about this since Jeff Rosen pulled his BS. In such a rage that I have not trusted myself to write on the issue. I am glad to see someone as level headed as Matt is seeing what I am seeing. Lets me know I am not crazy.

Speaking for me only

After embarrassing himself, Jeff Rosen attempts rehabilitation:

Conservatives are already citing my initial piece on Sotomayor as a basis for opposing her. This willfully misreads both my piece and the follow-up response.

Sure Jeff, sure. Not to worry. Here comes Jonathan Turley: