**Video Below the Fold**
In his July 13 piece, for instance, Toobin calls Sotomayor a “cautious and careful liberal” like Ginsburg and Breyer. So, it makes one wonder, has Toobin ever called anyone on the right a “cautious and careful conservative”?
She is, it seems, a liberal,¬ but a liberal in the cautious and careful mode of her likely future colleagues Ruth Bader Ginsburg and Stephen Breyer.
Since when is Ginsburg a “cautious and careful liberal”? She was, after all, once the chief litigator for women’s rights for the extremely leftist group the ACLU. The reason she was picked by President Bill Clinton to take a seat on the Court is because she was an activist liberal. Not “cautious” in the least.
Yet, here is Toobin remaking Ginsburg’s story into that of a stolid, “cautious” liberal so that he can give cover to Sotomayor’s activism on behalf of minority set asides. The truth of the matter is, however, there is nothing “cautious” about either Sotomayor’s or Ginsburg’s liberalism. They are both of the extreme variety compared to the average, conservative Democrat’s.
Restricting himself only to the Ricci case, Toobin said not a word on her past statements on the basic assumptions that set asides for minorities is the correct decision. At least he recognized the probable conflict that will likely occur with Chief Justice Roberts.
Toobin could have, for instance, talked of a video of the “wise Latina” talking about her benefitting from affirmative action.
(Story from The New York Times on the videos)
Of course, this might tend to diminish his proclamation that Sotomayor is a “cautious and careful liberal.”
In that vein, Toobin also spent no time on Sotomayor’s most controversial statement: the “wise Latina” remark.
Those most familiar with Sotomayor's most publicized comment will recognize her infamous 32-word statement.
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.
Her supporters have said that this quote has been taken out of context and that read in context with the rest of the speech, this single sentence culled from the whole is easily misconstrued. But that is simply not the case. The New York Times helpfully published the entire speech and there is no way, when all is said and done, not to understand that Sotomayor is asserting in a straight forward manner that minorities -- "Latinas" in particular -- are better judges than white men. She further asserts that white men are less likely to have such experiences that will make them a good judge unless they are fortuitous enough to have reached "moments of enlightenment" that will put them on par with minorities.
Put plainly, she is saying "Latinas" make better judges simply by virtue of being Latinas. That is as perfect an example of racist sentiment as can be imagined.
The whole piece is shocking for its basic assumptions but, aside from the sentence quoted above that everyone is familiar with, the following paragraphs are revealing.
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. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation. For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach. For all of us, how do change the facts that in every task force study of gender and race bias in the courts, women and people of color, lawyers and judges alike, report in significantly higher percentages than white men that their gender and race has shaped their careers, from hiring, retention to promotion and that a statistically significant number of women and minority lawyers and judges, both alike, have experienced bias in the courtroom?
The first paragraph taken by itself seems almost sensible. Of course everyone's experience might tend to interfere in how they perceive things. But taken with the second paragraph, one sees that Sotomayor is saying that only a "Latina's" experience serves as the best basis for judicial perfection. The most stunning part nestled in this excerpt is when Sotomayor said that white men are less able to judge because of their "experiences" unless, she says, they make some supreme effort toward "enlightenment."
I quote again from the second paragraph:
For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach.
Her basic premise here is that white men are incapable of being inherently good judges unless they make that effort toward "enlightenment" like "other men... have been able to reach." Yet, Latinas are simply in the perfect place to judge without having to reach for any such "enlightenment." They just have it by virtue of being "Latinas" and by the very nature of their "experiences."
How this cannot be understood as an assumption of racial superiority is beyond me. Maybe I'm just not "enlightened" enough to understand how a bald-faced assumption of racial superiority is not a racist sentiment?
So, this is the person that a President of the United States has proffered to take a seat on the nation's highest court. A racist with low grades and a sense of entitlement that has been reversed or scolded in five out of the six cases of hers that have appeared before past Supreme Court sessions.
It shouldn't be so hard to vote no on such a candidate.
Last, Toobin wrote an entire piece analyzing Sotomayor’s judicial history yet not once in his piece did he mention the fact that five out the six cases that Sotomayor decided in lower courts that appeared before the Supremes were reversed by that court.
All in all, for a piece that is supposed to be analyzing Sotomayor’s career, Toobin did a poor job. But if one only wanted to see the things that would put her in the best light, why Toobin’s work was exemplary.
For the record, here are the cases that Sotomayor was a part of that have appeared before the nation’s highest court.
Sotomayor's Cases Before the SCOTUS
- Ricci v. DeStefano 530 F.3d 87 (2008) reversed on a 5-4 vote. Sotomayor was part of a three-judge panel that ruled to uphold a lower court's decision in favor of the City of New Haven's decision to ignore results of an exam for promotions in the fire department. Promotions were denied because no blacks and only one Hispanic passed the test. White and Hispanic firefights fought the ruling.
- Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007) - reversed 6-3. Sotomayor, writing for a three-judge panel, ruled that the EPA may not engage in a cost-benefit analysis in implementing a rule that the "best technology available" must be used to limit the environmental impact of power plants on nearby aquatic life. The case involved power plants that draw water from lakes and rivers for cooling purposes, killing various fish and aquatic organisms in the process. Sotomayor ruled that the "best technology" regulation did not allow the EPA to weigh the cost of implementing the technology against the overall environmental benefit when issuing its rules. The Supreme Court reversed Sotomayor's ruling in a 6-3 decision, saying that Sotomayor's interpretation of the "best technology" rule was too narrow.
- Dabit vs. Merrill Lynch, 395 F.3d 25 (2005) - reversed 8-0 In a 2005 ruling. Sotomayor overturned a lower court decision and allowed investors to bring certain types of fraud lawsuits against investment firms in state court rather than in federal court. The lower court had agreed with the defendant Merrill Lynch's argument that the suits were invalid because the Securities Litigation Uniform Standards Act of 1998 required that such suits be brought only in federal court. The Supreme Court unanimously overturned Sotomayor's ruling, saying that the federal interest in overseeing securities market cases prevails and that doing otherwise could give rise to "wasteful, duplicative litigation."
- Malesko v. Correctional Services Corp., 299 F.3d 374 (2000) - reversed 5-4. Sotomayor, writing for the court in 2000, supported the right of an individual to sue a private corporation working on behalf of the federal government for alleged violations of that individual's constitutional rights. Reversing a lower court decision, Sotomayor found that an existing law, known as "Bivens," which allows suits against individuals working for the federal government for constitutional rights violations, could be applied to the case of a former prisoner seeking to sue the private company operating the federal halfway house facility in which he resided. The Supreme Court reversed Sotomayor's ruling, saying that the Bivens law could not be expanded to cover private entities working on behalf of the federal government.
- Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997) - reversed 7-2. As a district court judge in 1997, Sotomayor heard a case brought by a group of freelance journalists who asserted that various news organizations, including the New York Times, violated copyright laws by reproducing the freelancers' work on electronic databases and archives such as "Lexis/Nexis" without first obtaining their permission. Sotomayor ruled against the freelancers and said that publishers were within their rights as outlined by the 1976 Copyright Act. The appellate court reversed Sotomayor's decision, siding with the freelancers, and the Supreme Court upheld the appellate decision (therefore rejecting Sotomayor's original ruling).
- Knight vs. Commissioner, 467 F.3d 149 (2006) - upheld but unanimously rejected the reasoning she adopted In 2006, Sotomayor upheld a lower tax court ruling that certain types of fees paid by a trust are only partly tax deductible. The Supreme Court upheld Sotomayor's decision but unanimously rejected the reasoning she adopted, saying that her approach "flies in the face of the statutory language."
- Empire Healthchoice Assurance, Inc. vs. McVeigh, 396 F.3d 136 (2005) affirmed on a 5-4 vote. Sotomayor ruled against a health insurance company that sued the estate of a deceased federal employee who received $157,000 in insurance benefits as the result of an injury. The wife of the federal employee had won $3.2 million in a separate lawsuit from those whom she claimed caused her husband's injuries. The health insurance company sued for reimbursement of the benefits paid to the federal employee, saying that a provision in the federal insurance plan requires paid benefits to be reimbursed when the beneficiary is compensated for an injury by a third party.
