Sotomayor and the Diversity Argument

By Dan Froomkin
1:15 PM ET, 05/27/2009

U.S. Appeals Court Judge Sonia Sotamayor, President Obama's Supreme Court nominee, would bring needed diversity to a panel still very much dominated by white males.

That's something to celebrate -- unless of course you're not a believer in the value of diversity, which is what a number of Sotomayor's critics are starting to sound like.

Why is diversity important? Why is it particularly important someplace like the Supreme Court -- the ultimate champion of the rule of law and protector of minority rights? Precisely because people from different backgrounds bring different perspectives to bear in the decisionmaking process. And that, the American tradition suggests, leads to better outcomes.

Sotomayor acknowledges that her background -- as a woman, as a Latina, as someone from modest circumstances -- informs her judgment. She has correctly suggested that this perspective has some value, and could even at times lead to wiser decisions than would be made by people lacking similar experiences.

But rather than celebrate this, Sotomayor's few yet vocal right-wing critics are getting awfully close to suggesting that a Supreme Court nominee who is from a minority background, and who admits that her background informs her thinking and judgment, is presumptively disqualified -- in favor of either white men or people who think like them.

Neither her record nor her words suggest that her personal experiences have turned Sotomayor into some sort of outlaw judge. Rather, she seems to fall right into the Democratic mainstream.

But consider what the Wall Street Journal editorial board had to say about Sotomayor today: "She is a judge steeped in the legal school of identity politics. This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday....

"Judge Sotomayor's belief is that a 'Latina woman' is by definition a superior judge to a 'white male' because she has had more 'richness' in her struggle. The danger inherent in this judicial view is that the law isn't what the Constitution says but whatever the judge in the 'richness' of her experience comes to believe it should be."

Or the statement from Oklahoma Republican Senator Jim Inhofe: "Of primary concern to me is whether or not Judge Sotomayor follows the proper role of judges and refrains from legislating from the bench. Some of her recent comments on this matter have given me cause for great concern. In the months ahead, it will be important for those of us in the U.S. Senate to weigh her qualifications and character as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences."

The American Prospect's Dana Goldstein responds: "Yes. Because the worldviews of John Roberts, Sam Alito, John Paul Stevens, Anthony Kennedy, Stephen Breyer, and Antonin Scalia are not impacted at all by their white male identities. White men are raceless and genderless, haven't you heard?"

Or, as blogger Atrios puts it: "The greatest practitioners of whatever it is we call 'identity politics' in this country have always been white males. The lack of self-awareness of this fact is what is termed unexamined privilege."

Here is the 2001 speech that Sotomayor's critics are citing as Exhibit A of her "identity politics." The supposedly incendiary line: "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."

Suggesting that someone from a background of oppressed and/or minority status might be able to render wiser judgment on some issues than someone from a more privileged status seems uncontroversial to me -- particularly in the context of a bench dominated by white males, and even more particularly in the context of race and sex discrimination cases, which is what Sotomayor seemed to have been talking about.

And here's a less-quoted part of her remarks: "I...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...[N]ine white men on the Supreme Court in the past have done so on many occasions and on many issues...

"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[s] simply do not care."

She concluded: "I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

As I wrote yesterday, Obama's choice was a concrete expression of his view that justice is arrived at not through cold-hearted calculations made in a vacuum, but by people with varied experiences applying the principles of the founding fathers to the real world.

Kathleen Kennedy Townsend writes in The Washington Post: "In Marbury v. Madison, the decision that established the separation of powers, Justice John Marshall asked the key question: Is this person injured? If we have justices whose life experiences remove them from those who have suffered real injury, they will not make an effort to find a remedy because they won't see that injury. Without empathy, it may be too difficult to note that someone has suffered, to acknowledge that theirs is a real grievance."

The New York Times editorial board writes: "In her rulings, Judge Sotomayor has repeatedly displayed the empathy Mr. Obama has said he is looking for in a justice. She has listened attentively to, and often ruled in favor of, people who have been discriminated against, defendants and other groups that are increasingly getting short shrift in the federal courts. She has shown little patience for the sort of procedural bars that conservative judges have been using to close the courthouse door on people whose rights have been violated."

Calvin Woodward writes for the Associated Press: "Some Republicans scoffed when Obama foreshadowed the selection saying he wanted a justice with a common touch and 'the quality of empathy.' What matters, they say, is judicial skill and fealty to the Constitution.

"But the politics of biography is a game played by all sides in Washington and did not begin with Obama and his own compelling life story.

"Such packaging has animated all recent presidents and their most historic or contentious appointments, to the point that it can resemble a race of the elite for a slice of humble pie.

"Clarence Thomas was introduced as a man raised by grandparents, his mother and nuns in the precursor to a colossal Supreme Court nomination struggle centered on other aspects of his past. Bill Clinton told Americans that Ruth Bader Ginsburg was a 'healer' whose record showed 'what is in her heart.' (She told the room she was a failure as a cook.)

"George W. Bush presented Samuel Alito, son of an Italian immigrant, as 'a product of New Jersey public schools.' And in a to-die-for charm moment, Bush's ceremony introducing John Roberts, now chief justice, was enlivened by the judge's cute children scampering around the East Room."

What If It's No Contest?

By Dan Froomkin
1:05 PM ET, 05/27/2009

Here's an interesting question: What will we all do if Sonia Sotomayor's Supreme Court nomination inspires a completely lopsided debate -- with only professional right-wing noisemakers and extremists actually arguing that she shouldn't be confirmed?

It could be a cakewalk.

David Jackson blogs for USA Today: "The prospects for confirmation of Supreme Court nominee Sonia Sotomayor seem to get brighter and brighter - the top Republican on the Senate Judiciary Committee appeared today to rule out the prospect of a GOP filibuster.

"'I don't sense a filibuster in the works,' Sen. Jeff Sessions said this morning on CNN.

"The Alabama Republican said Sotomayor 'has serious problems' in his view, but added that everybody wants to 'have a good hearing, take our time, and do it right. And then the senators cast their vote up or down based on whether or not they think this is the kind of judge that should be on the court.'"

Even Fred Barnes of the Weekly Standard puts Sotomayor's chances at 95 percent.

It's not just her qualifications, though they are considerable.

Shailagh Murray and Michael D. Shear write in The Washington Post that Sotomayor's status as the first Hispanic nominees is "creating a difficult political equation for Republicans as they weigh how aggressively to fight her appointment.

"An all-out assault on Sotomayor by Republicans could alienate both Latino and women voters, deepening the GOP's problems after consecutive electoral setbacks. But sidestepping a court battle could be deflating to the party's base and hurt efforts to rally conservatives going forward....

"Senate Republicans responded with restraint to the announcement yesterday, and their largely muted statements stood in sharp contrast to the fractious partisanship that has defined court battles in recent decades....

"Sen. Charles E. Scjahumer (D-N.Y.) said of his GOP colleagues and conservative activists who are leading the court fight. 'I think this process is going to be more a test of the Republican Party than of Sonia Sotomayor.'"

Peter Wallsten and Richard Simon write in the Los Angeles Times: "Rush Limbaugh called her a 'reverse racist.' The conservative Judicial Confirmation Network said she carried a 'personal political agenda' and should be blocked from the Supreme Court.

"But beyond such heated criticism, commonplace in partisan court battles, the nomination Tuesday of Sonia Sotomayor to the high court brought a surprisingly muted response from the Republican senators who will actually vote on it....

"[S]ome party strategists are telling GOP senators that attacking Sotomayor would waste an opportunity for Republicans to appear welcoming to Latino voters, many of whom turned away from the party in recent years because of conservative support for tough immigration restrictions and GOP opposition to legalizing undocumented workers."

David Greenberg writes in a Los Angeles Times op-ed: "Starting in the late 1960s -- when the expansive jurisprudence of the Supreme Court under Chief Justice Earl Warren became a lightning rod for political controversy -- fierce ideological clashes over high court nominees have become the norm...

"The side that wins tends to wage an ideological battle without being perceived as ideological. So far, Obama seems to be way ahead."

Jess Bravin and Nathan Koppel write in the Wall Street Journal: "Judge Sonia Sotomayor has built a record on such issues as civil rights and employment law that puts her within the mainstream of Democratic judicial appointees."

David G. Savage and Christi Parsons write in the Los Angeles Times that Sotomayor's "moderate-to-liberal record is unlikely to trigger an ideological battle in the Senate....

"Her most controversial decision appears to be a two-paragraph, unsigned opinion last year in a racial bias case.

"A three-judge panel that included Sotomayor upheld a lower court order that tossed out a lawsuit by white firefighters in New Haven, Conn., who had good scores on tests used for promotions. The firefighters sued the City Council after it dropped the test upon learning that it indicated that no blacks had qualified for promotions.

"'We are not unsympathetic to the [white firefighters'] expression of frustration,' the appeals court said. But the city, 'in refusing to validate the exams, was simply trying to fulfill its obligations under the [Civil Rights Act] when confronted with test results that had a disproportionate racial impact.'

"Dissenting judges on the full appeals court accused Sotomayor and her colleagues of ignoring the real issue. They said the white firefighters were denied promotions because of their race, a clear violation of civil rights laws.

"The Supreme Court agreed in January to hear the white firefighters' appeal. If the justices overrule Sotomayor's decision, it will be an embarrassment for her before her confirmation hearing. But White House lawyers said it would be hard for her critics to make a major controversy out of an unsigned two-paragraph opinion."

Jay Newton-Small writes for Time that "the GOP knows it has been dealt a bad hand, and it's playing for time.

"Time, after all, is what the party needs if it has any hope whatsoever of uncovering some kind of silver bullet — buried somewhere in the 17 years of Sotomayor's federal judicial writings — that could help sink her nomination."

But Robert Reich blogs for TPM Cafe: "Still, never underestimate the Republicans' capacity for taking big political risks that turn out badly. Remember Sarah Palin? Republicans may figure that they're so badly decimated already, so marginalized and irrelevant, there's little to lose and possibly much to gain by going negative on Sotomayor and unleashing their terror-TV and rant-radio attack dogs. It's also possible that without much remaining of any moderate view inside their own ranks, Republicans may simply lack the wisdom -- dare I call it judiciousness? -- to opt for a more sensible strategy."

Chris Cillizza of The Washington Post has some suggestions for the GOP: "If the ultimate goal for Republicans is to defeat Obama in 2012, then the Sotomayor pick presents them with a golden opportunity to cast the president as a traditional liberal -- far from the post-partisan figure he was able to present to the American public in the 2008 election....

"For Republicans to have any chance of defeating Obama in 2012, they must find a way to convince independent voters that the president is far less than advertised on the issue of bipartisanship."

There's a problem with that approach, though. As Cillizza notes: "A Gallup poll conducted in late April to coincide with Obama's 100th day in office showed that two-third of Americans believed he was 'making a sincere effort to work with members of the other party to find solutions acceptable to both parties,' a piece of data that should worry any Republican strategist trying to position a candidate to topple Obama in three years time."

But not to worry, Cillizza writes: "It's never too soon then, from a Republican party perspective, to start building a counter-narrative that Obama may talk a big game on bipartisanship but his actions -- from massive increases in government spending to the Sotomayor pick -- reveal him to be a down-the-line liberal."

Howard Kurtz writes in The Washington Post that the White House employed anonymous briefings as part of its spin campaign -- which even included an online slide show of the nominee.

Kurtz outed the two briefers: Senior adviser David Axelrod and Ron Klain, Vice President Biden's chief of staff.

"'We protest in the strongest terms the Obama administration's frequent use of briefings done on a background basis . . . especially when the same officials briefing often appear ubiquitously on television shows with similar information,' said Jennifer Loven of the Associated Press, president of the White House Correspondents' Association. She said this was particularly true on a Supreme Court nomination, 'when the issue does not involve sensitive material such as national security information.'"

James Rainey writes in the Los Angeles Times: "It's nothing new for an incoming administration, particularly a popular one, to be aggressive about presenting information the way it wants. But the media has an obligation not to play along."

Quick Takes

By Dan Froomkin
12:10 PM ET, 05/27/2009

Charles Babington writes for the Associated Press: "In a Western trip devoted mainly to raising political money, President Barack Obama is highlighting two favorite issues: clean energy and his economic stimulus plan. The president was scheduled to tour the 'photovoltaic array' at Nellis Air Force Base, near Las Vegas, on Wednesday. The solar-powered cells provide a quarter of the base's power needs, White House officials said.Obama also was expected to discuss the progress of his $787 billion stimulus package, which Congress passed three months ago. The money is paying for thousands of projects in construction and other fields throughout the country. Obama sandwiched the midday event between two political fundraisers: one on Tuesday night in Las Vegas for Senate Majority Leader Harry Reid, D-Nev., and one set for Wednesday night in Los Angeles for the Democratic National Committee."

Spencer S. Hsu writes in The Washington Post: "President Obama announced yesterday that he will merge the staffs of the Homeland Security Council and the National Security Council to speed up and unify security policymaking inside the White House. The combined national security staff, about 240 people, will report to national security adviser James L. Jones....Obama's changes to the national security structure, to be implemented over six weeks, address concerns that former president George W. Bush created an overlapping White House bureaucracy by establishing the Homeland Security Council after the Sept. 11, 2001, terrorist attacks."

Mark Landler writes in the New York Times that "as President Obama tries to find a way to punish North Korea for its latest nuclear test and missile launchings, his senior aides acknowledge that every policy option employed by previous presidents over the past dozen years — whether hard or soft, political or economic — has been fruitless in stopping North Korea from building a nuclear weapon."

Dan Ephron and Michael Hirsh write for Newsweek that White House Chief of Staff Rahm Emanuel "is emerging as a central player in efforts to press Israel on key issues like Iran's nuclear program and talks with the Palestinians—and to sell those policies to the U.S. Jewish community."

Justin Elliott writes for TPM Muckraker: "We've gotten our hands on the Pentagon report on which the New York Times based its front-pager last week asserting that 1 in 7 Guantanamo detainees 'returned' to terrorism....The bottom line: Those who have counseled skepticism about the DOD numbers would seem to be vindicated by the actual report."

The Associated Press reports: "Former New York City police Commissioner Bernard Kerik has been indicted on charges of making false statements to White House officials vetting him for the position of Department of Homeland Security secretary."

Eric Boehlert, writing for Media Matters, compares how newspapers covered former vice president Dick Cheney's harsh critiques of the Obama administration and former vice president Al Gore's September 2002 critique of the march to war in Iraq.

Jack Hidary blogs for Huffingtonpost.com about last night's Radio City Music Hall debate between Karl Rove and James Carville.

Carl Hiaasen writes in his Miami Herald column: "The argument that there's no place secure enough to hold [Guantanamo detainees] is astounding, considering the number of vicious maniacs and murderous psychos who are currently behind bars in the United States."

Mike Boehm writes in the Los Angeles Times that 21 photos of Obama as a first-year-student at Occidental College "make up 'Barack Obama: The Freshman,' an exhibition opening Thursday at M+B Gallery in West Hollywood.

Online Humor

By Dan Froomkin
9:45 AM ET, 05/27/2009

The Economist's pseudononymous Lexington writes that President Obama baffles most comedians: "David Letterman, a talk-show host, describes him as 'cogent, eloquent, and in complete command of the issues' and sighs: 'What the hell am I supposed to do with that?'"

But the one exception to the rule is The Onion, Lexington writes. "Hence the headline that greeted Mr Obama's election victory: 'Black Man Given Nation's Worst Job'. The Onion News Network, an online video venture, did a segment entitled 'Obama Win Causes Obsessive Supporters to Realise How Empty Their Lives Are'."

Furthermore, "the way more serious journalists fawn over the new president offers an irresistible target. 'Media Having Trouble Finding Right Angle on Obama's Double Homicide', the Onion reported last month. '"I know there's a story in there somewhere,"' said the editor of Newsweek, after Mr Obama brutally murdered a suburban couple."

Cartoon Watch

By Dan Froomkin
9:34 AM ET, 05/27/2009

Stuart Carlson on Obama's high ground, Tony Auth on Obama's common ground, Chuck Asay on Obama's middle ground, and Jim Morin, Pat Bagley, Bruce Plante, Walt Handelsman, Joel Pett, RJ Matson, Steve Kelley, Jimmy Margulies, Bob Gorrell and Kevin Siers on the Sotomayor selection.

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