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Sonia Sotomayor
For some reason, Sonia Sotomayor has become the early frontrunner to be Obama's nominee to replace Justice David Souter on the Supreme Court. I'm not quite sure how she became the consensus favorite so quickly, but in any case the all-too-familiar result has been an immediate outpouring of anguish 
that her choice would be little more than an act of craven obeisance to the PC crowd, who make it all but impossible for white guys to make it to the Supreme Court these days. Considering that even Democrats have nominated four white guys out of six appointments in the past half century, this is a little rich, but that hasn't stopped the kvetching.
Over at TNR the other day, Jeffery Rosen piled on, pointing out that New York's senators, "in a burst of demographic enthusiasm," favored her appointment, and then retailing a long list of complaints from anonymous law clerks about how she wasn't really very bright and had a bad temper. Just your typical affirmative action hire, in other words.
Now, unlike most of Rosen's critics, I didn't have a big problem with the fact that most of his sources were anonymous. This is actually one of those cases where it's probably the only way to write the story, since former law clerks aren't likely to risk their careers by dishing publicly about their former colleagues, especially ones who might be sitting on the Supreme Court a couple of months from now.
No, the problem with Rosen's piece is that it was so relentlessly unfair: a long string of complaints despite the fact that Sotomayor's own clerks, who presumably know her best, had nothing but praise for her. And they were speaking anonymously too. Mark Kleiman, after noting that Sotomayor won the Pyne Prize as the top undergraduate in her senior year at Princeton and then reading a persuasive bit of praise for Sotomayor by one of her former clerks, Robin Kar, tries to push back:
I find Kar's piece utterly convincing. Not every judge attracts this sort of passion from her clerks. And Kar does more than gush: he makes a strongly-argued case that Sotomayor has exactly the sort of intelligence you'd like to see on the Supreme Bench. Better yet, in response to a question, he identifies two pieces of Sotomayor's legal writing as exemplifying her talents of analysis and legal writing her dissents (thus reflecting her views alone, not aided or burdened by those of her colleagues) in Croll v. Croll and Hankins v. Lyght.
I read the Croll case first....I'd give it very high marks; having read first the controlling opinion and then the dissent, I found the dissent compelling.
....Hankyns v. Light involves a bit of law I know something about: the Religious Freedom Restoration Act....My first-blush analysis was to liken a forced retirement to a job-site injury, something that involved secular questions only. But Sotomayor's argument made it clear to me that clergy hiring (as distinguished from the hiring of a math teacher in a religious school involved in one of the precedent cases) was inextricably a religious matter.
....So, insofar as a non-expert can judge, Kar's two examples are both on point: Sotomayor writes much more clearly and persuasively than the average appellate judge.
As plenty of people have already pointed out, for a job like Supreme Court justice there's no such thing as a "best qualified person." There are, rather, maybe a hundred equally highly qualified people, and it's silly to pretend that white guys have a hard time getting considered. Just the opposite, in fact, since every time a non-white guy gets nominated, they have to put up with a barrage of innuendo that they're not really very bright, not the best pick, just a sop to identity politics (unlike the Catholic white guys), and would basically be a taint to the good name of the court. It's disgraceful.
Powerline agrees with Drum
http://www.powerlineblog.com/archives/2009/05/023496.php
This has got to be a first.
I Know Nothing
What got me about Rosen's piece wasn't the anonymous sourcing, it was the admission that he hadn't actually read any of her opinions or interviewed enough to know what people thought about her. While the frank admission of ignorance at least beat the usual conservative line, it also makes the article shameful, not to mention makes people's reliance on it shameful. I know nothing about her either, but at least I'm not pontificating about her merits.
My other media annoyance was the Sunday Times's article on how Obama's pragmatism would determine his choice. Now, I've no doubt that he is more of a pragmatist than a lefty, but this article's theme still seemed more determined by the meme at the Times than by reality. They just want to keep repeating that he's a compromiser so you lefties have no hope and of course also that criticism of his is fair and balanced. In practice, the article quotes him as wanting a justice like Thurgood Marshall, about as liberal as we'll ever get. As for pragmatism, it depends on his using the classroom to teach and to promote habits of legal reasoning rather than pontificate and indoctrinate. Isn't that what the classroom is for?
they have to put up with a
they have to put up with a barrage of innuendo that they're not really very bright, not the best pick, just a sop to identity politics (unlike the Catholic white guys), and would basically be a taint to the good name of the court. It's disgraceful.
Why is that? Maybe it's because everyone demands a special seat for women, a special seat for African Americans, a special seat for Jews, a special seat for Hispanics, a special seat for Gays, a special seat ...
Maybe that unfair taint would go away if we had no special seats and just picked from a pool of talented *individuals*.
Or Kevin, perhaps you could do us a favor and allot the Supreme Court out on the basis of how many seats for which special group....
No "Special Seat" in this case...
To state that the nomination of Sonia Sotomayor to the U.S. Supreme Court is in any fashion an act of "Affirmative Action" displays ignorance, racism AND sexism.
Considering the fact that Females account for 50.8% of the U.S. population, Blacks 12.8%, Hispanics 14.8% & GLBT folks 10%, a certain proportion of Women (over half in fact), Blacks, Hispanics, and folks from the GLBT population will naturally appear in the Supreme Court (and everywhere else), without any "Special Seat".
[~STATISTICS: 2006 American Community Survey. United States Census Bureau.]
...unless some societal/attitudinal obstacles are placed in the way. An example of such an obstacle would be a perception, by the white majority (yes, I am white), that a Female, Black, Hispanic or GLBT person could not possibly be as intelligent or capable as their "White Male" counter-part.
In these Enlightened times, certainly no one would think/believe something so moronic as that!
Right?
No soul is desolate as long as there is a human being for whom it can feel trust and reverence.
~T.S. Eliot
Best white male for the job:
Jerry Brown!
It's time the Supremes included another CA ex-governor...
consequences
You reap what you sow. The doubts are a predictable result of affirmative action policy.
Kevin, you're a tall white
Kevin, you're a tall white man. Whose face are you stomping on by blogging here at Mother Jones? We should be hearing from a lesbian woman of color. My own personal recommendation for Mother Jones is to find an autistic overweight Muslim lesbian woman of color who supports female circumcision and wearing of the burka. Imagine the oppression she must face!
Conservatives announce
Conservatives announce Sotomayor is a front runner, immediately begin attacking, and then when she is not nominated claim victory for having prevented Obama from advancing his commie/socialist/whatever agenda through his judicial appointments.
actually, this is why we NEED affirmative action
tagged as:- solution
As Adam Serwer and others have pointed out, I think it's cases like this that illustrate why affirmative action is still needed. Basically, if you don't fit people's image of what a Supreme Court justice (for example) is supposed to look like, then you are always going to get tarred with innuendo that you're not smart, not qualified, too emotional, whatever the stereotypes happen to be of a Latina woman or whatever you are. It doesn't matter how much you buck those stereotypes in real life (and in this particular case, Sonia Sotomayor really is someone who bucks the stereotypes: a brilliant judge, an incisive thinker, supremely prepared for arguments, really all around impressive). It doesn't matter. People will just read her work differently and view her demeanor differently because of sex and ethnicity and the combination of both.
This kind of thing happens all the time for jobs lower than the Supreme Court - controlled experiments have shown that the exact same resumes get many times more calls back if they have white male names at the top than if they have female names or African-American sounding names.
That's why we need affirmative action. Affirmative action means you take a closer look at candidates who you wouldn't otherwise have been considering. When it's done right, it never means hiring unqualified people. But hopefully it helps those doing the choosing get past their biases, the quick responses that just lead people to stick qualified non-traditional candidates in the "no" pile without knowing why or even thinking about it.
In Sonia Sotomayor's case, I don't think any affirmative action is needed. Obama's people will read her stuff carefully, and come to their own judgment. Unlike Jeffrey Rosen, who totally abdicates that job and instead just acts as a mouthpiece for gossip from others. (That's my objection, not the anonymity. I think Rosen really should have read some of her opinions himself. He's a law professor!)
Instead of affirmative
Instead of affirmative action, which is another name for selective discrimination, why not just have laws outlawing white sounding names? Or make sure that resumes are passed around with all names removed from them. That would be trivial to do in an age of scanner based resumes.
What's happening now with Sotomayor is that every special interest group is gaming the system, putting their candidate forward in an attempt to dare Obama not to pick that candidate and incur their political retribution. That's hardly a way to help remove any sort of taint on a post.
Anyhoo, it's difficult for me to believe that Obama needs much help getting past a bias for white names when choosing his Supreme Court picks.
Anonymity Cloaks Clear Conflicts of Interest
One major problem with the anonymous sourcing is that Rosen's brother-in-law and former colleague is Neal Katyal, who would accurately be described as a former 2d Circuit clerk and who would be in line for a prestigious promotion if Sotomayor's candidacy tanked in favor of Katyal's boss and co-front-runner for the nomination, Elena Kagan. Despite these potential conflicts of interest for both Rosen and Katyal, we have no way to determine whether Katyal directly or indirectly contributed to the hack job or whether Rosen's bias influenced the piece.
How about a non-Ivy Leaguer?
And I don't mean Harriet Miers.
There are plenty of talented, progressive legal minds out there who didn't go to an "elite" law school, for one reason or another. Some may be women, some may be black, Hispanic or Asian. Heck, some may even be gay. But would Obama have the cojones to disappoint all his Harvard Law School buddies? I don't think he'd dare.
Equal at the top
"As plenty of people have already pointed out, for a job like Supreme Court justice there's no such thing as a 'best qualified person.' There are, rather, maybe a hundred equally highly qualified people"
Really? Like there are a hundred equally highly qualified professional basketball players or golfers or home-run hitters? Or novelists or movie directors or presidential candidates?
thnks for your post. it's
thnks for your post. it's wonderful.....
I am Greek-American, and I
I am Greek-American, and I eventually realized that my Greek Mama had more common sense than I did.