May 26, 2009

The Republican National Committee screwed up and let slip their talking points on their inevitable opposition to the nomination of Sonia Sotomayor to the Supreme Court. The Briefing Room has them. As you can see, it's pretty tepid stuff.

Most of them were in use on Fox today. But it's clear that most of the right-wing talkers are staking their opposition on a couple of video snippets -- both of which are incomplete and taken out of context.

At least, that was the upshot of the early round of brickbats thrown Sotomayor's way on Fox this morning by the likes of Karl Rove, Brian Kilmeade, and Megan Kelly. But it's been more than just Fox. As Media Matters notes, the distortions immediately made their way into mainstream cable news.

The most notorious one involves a snippet of a Sotomayor quote in which she seemed to say that Latina women make better judges than white men. But as Media Matters reports, that's a grotesque mischaracterization:

Contrary to Kelly and Greenburg's claims, Sotomayor did not say or suggest that Latina or Latino judges are "better" than white male judges, but was instead talking specifically about "race and sex discrimination cases." From Sotomayor's speech delivered at the University of California, Berkeley, School of Law and published in 2002 in the Berkeley La Raza Law Journal:

[More on Sotomayor's full quote below.]

The other talking point that seems to have Orrin Hatch's knickers in a bunch involves a remark she made about "setting policy" at the district-judgeship level. Brian Kilmeade set that one up -- even though it had already been knocked down by Napolitano himself, who understood exactly what she was talking about. Moreover, Kilmeade (and Hatch) dishonestly but conveniently ignore the fact that Sotomayor within a few sentences of having made that remark made clear she was expressing a prevailing view -- one to which she did not subscribe herself.

Again, Media Matters has the goods:

In fact, in the comments the reporters were referring to, Sotomayor was not advocating making policy from the bench, but responding to a student who asked the panel to contrast the experiences of a district court clerkship and a circuit court clerkship. Sotomayor said:

The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time.

The Oxford Companion to the Supreme Court of the United States (2005) notes that federal appellate courts do in fact have a "policy making" role:

The courts of appeals have also gained prominence because of the substance of their caseload. For their first twenty five years, these courts dealt primarily with private law appeals. Diversity cases (suits between citizens of different states), bankruptcy, patent, and admiralty cases made up most of their work. However, as federal regulation increased, first during the Progressive Era, then during the New Deal, and finally during the 1960s and 1970s, the role of the courts of appeals changed as appeals from federal administrative agencies became a larger part of their caseload. Other developments that increased these courts' policy making importance were the increased scope of federal prosecutions, especially those dealing with civil rights, drugs, racketeering, and political corruption, increased private litigation over various types of discrimination; and litigation concerning aliens' attempts to gain political asylum. Also adding to their importance were their post 1954 use to oversee school desegregation and reform of state institutions such as prisons and mental hospitals, along with controversies like that over abortion.

Indeed, during the May 26 edition of MSNBC Live, NBC News chief justice correspondent Pete Williams said of Sotomayor's Duke comments: "Even some conservatives and followers of strict constructionism have said that she was only stating the obvious: that trial judges, district court judges, decide only the cases before them, and that appeals courts, because they are the above the other courts, do set policy; they do make precedent that governs the other courts. So it's either a very controversial statement or a fairly routine one, depending on your point of view."

Here's more of the remarks from Sotomayor about Latina judges:

In our private conversations, Judge 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. 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 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.

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. Justice 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. 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice 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. 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. 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.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. 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.

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