Debunking Right-Wing Talking Points On Judge Sotomayor

Let’s debunk some right-wing talking points on Judge Sonia Sotomayor, shall we?

Judge Sotomayor said that the appeals courts make policy! That proves she’s an activist judge!

While it’s true that Judge Sotomayor said:

All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made

She did follow that up with:

I’m not promoting it. I’m not advocating it.

In addition:

She’s not wrong,” said Jeffrey Segal, a professor of law at Stony Brook University. “Of course they make policy… You can, on one hand, say Congress makes the law and the court interprets it. But on the other hand the law is not always clear. And in clarifying those laws, the courts make policy.”

[…]

Eric Freedman, a law professor at Hofstra University, was equally dismissive of this emerging conservative talking point. “She was saying something which is the absolute judicial equivalent of saying the sun rises each morning. It is not a controversial proposition at all that the overwhelming quantity of law making work in the federal system is done by the court of appeals… It is thoroughly uncontroversial to anyone other than a determined demagogue.”

[Emphasis mine]

Sotomayor said that Latina judges are better than white male judges! That’s racist!

It’s true that Judge Sotomayor said:

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.

Actually, the full sentence is:

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.

Looks like we’re missing some context here; keep in mind that Judge Sotomayor was discussing race and sex discrimination cases when she made these remarks:

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 [Sandra Day] 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 [Benjamin] 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.

[Emphasis mine]

Sounds a lot less controversial when you put everything in context, huh?

Many of Sotomayor’s rulings have been overturned upon appeal, which proves that she’s an inferior judge.

Actually, Judge Sotomayor’s record on reversals is far above average:

Over each of the last several terms, the [Supreme Court] has reversed 75% of the cases that have come before it.

[…]

Sotomayor’s decisions were upheld far more frequently than the norm. Apparently, out of the 380-odd opinions she penned while on the Second Circuit, the Supreme Court granted cert on just six. And of those six, Sotomayor was reversed on only three. That’s a .500 batting average

[Emphasis mine]

So while the Supreme Court reverses 75% of the rulings they review, they have reversed only 50% of Sotomayor’s rulings they reviewed.

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