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.


Goodbye Gitmo, Part 2

Here’s more on President-elect Obama’s plan to close Guantanamo Bay:

President-elect Barack Obama plans to issue an executive order on his first full day in office directing the closing of the Guantánamo Bay detention camp in Cuba, people briefed by Obama transition officials said Monday.

But experts say it is likely to take many months, perhaps as long as a year, to empty the prison that has drawn international criticism since it received its first prisoners seven years ago this week. One transition official said the new administration expected that it would take several months to transfer some of the remaining 248 prisoners to other countries, decide how to try suspects and deal with the many other legal challenges posed by closing the camp.

People who have discussed the issues with transition officials in recent weeks said it appeared that the broad outlines of plans for the detention camp were taking shape. They said transition officials appeared committed to ordering an immediate suspension of the Bush administration’s military commissions system for trying detainees.

In addition, people who have conferred with transition officials said the incoming administration appeared to have rejected a proposal to seek a new law authorizing indefinite detention inside the United States. The Bush administration has insisted that such a measure is necessary to close the Guantánamo camp and bring some detainees to the United States.

Mr. Obama has repeatedly said he wants to close the camp. But in an interview on Sunday on ABC, he indicated that the process could take time, saying, “It is more difficult than I think a lot of people realize.” Closing it within the first 100 days of his administration, he said, would be “a challenge.”


Aside from analyzing intelligence and legal filings on each of the remaining detainees, diplomats and legal experts have said the new administration will need to begin an extensive new international effort to resettle as many as 150 or more of the remaining men. Portugal and other European countries have recently broken a long diplomatic standoff, saying they would work with the new administration and might accept some detainees who cannot be sent to their home countries because of concerns about their potential treatment.


Catherine Powell, an associate professor of law at Fordham, said transition officials appeared most interested at a meeting last month in showing international critics that they were returning to what they see as traditional American legal values.

“They are really looking for tools that we have in our existing system short of creating an indefinite detention system,” Ms. Powell said.

Mark P. Denbeaux, a Seton Hall law professor who has been a prominent lawyer for Guantánamo detainees, said that at a briefing he attended with senior officials of the transition last month the officials seemed to have decided to suspend the military commissions immediately.

“Their position is they’re a complete and utter failure,” Mr. Denbeaux said.

[Emphasis mine]

Closing Gitmo will take a lot of time, nobody is doubting that.  Every case will have be reviewed as thoroughly as possible, and afterwards determinations will have to be made as to the fate of the detainees.  In particular, decisions will have to be made on who to prosecute, who to release and how to release them.

But the fact that Obama will begin the end of Guantanamo Bay in his first week is a huge step, and it’s a clear rebuke of the neoconservative, Bushean policies of indefinite detainment and prisoner abuse–policies that belong in the dustbin of American history.

Closing Gitmo will be the crucial first step in reforming America’s battered image abroad and restoring the rule of law in all that the United States of America does.  It’s about time.

Burris Deal Reached? (UPDATED X4)

Roland Burris and the Senate Democrats are holding a joint press conference soon, which signals to me that they’ve reached some kind of deal; seeing Burris sitting side-by-side with Harry Reid smiling and laughing is a far cry from his brief press conference in the rain yesterday.

Most likely, the deal will be that Burris will be allowed to take the seat as long as he pledges not to run for re-election in 2010.

Senate Democrats bungled the situation badly, but they’re not completely stupid–they know the courts will compel Illinois Secretary of State Jesse White to certify Burris’ appointment, leaving them without a legal way to deny Burris his seat. By cutting a deal now, they get this story out of the headlines and avoid being forced by the courts to seat him. It’s a way to save face, which I guess I can get behind. Plus, Burris might not be perfect, but he’s a fine enough pick for the seat.

I’ll update when I have more information.

UPDATE: The AP is reporting that there is a deal, but has no information as to what the terms are.

UPDATE II: Reid starts out by praising Burris, but goes on to say that Secretary of State White still has to sign off on the appointment before Burris can take his seat.

Durbin also starts out by praising Burris and goes on to say that the confrontation over Burris has nothing to do with race; he notes that Jesse White, who is holding up Burris appointment, is also African-American.

UPDATE III: Durbin is defending the rule that requires appointees to have a certification before they are allowed to take their seats in the Senate; he seems to be implying that Burris could very well be seated if he gets a valid certification. Durbin goes on to say that the Rules committee will take up the issue and make recommendations once that occurs.

In response to a press question, Reid says that White’s signature is “vital.”

UPDATE IV: Reid is clarifying that he has no problem with Burris as an individual, but noting that Burris will be testifying in regards to Blagojevich tomorrow, which will be a “very important” hearing. He also seems to be implying that the full Senate will vote on whether or not to seat Burris.

Mr. Coleman Goes To Court

Surprising exactly nobody, Norm Coleman is challenging the results of the Minnesota recount in court:

Republican Norm Coleman, who received 225 fewer votes than DFLer Al Franken in the U.S. Senate recount, will challenge the result in court. He told reporters at a state Capitol news conference that a lawsuit, known as an election contest, would proceed.


Coleman, whose Senate term ended on Saturday, began the recount on Nov. 19 with a 215-vote lead. His attorneys have said they believe he would have prevailed if the board had reviewed 650 absentee ballots they say may have been wrongly rejected, along with up to 150 ballots they say were counted twice and 133 Minneapolis votes that were counted using election day machine results after the ballots couldn’t be found during the hand recount.

It’s funny that Coleman is going to fight this for as long as he can, considering:

I guess quitting in the name of healing and unity is only a good idea if you’re a Democrat, huh?

But Coleman won’t concede and we all know why: he has nothing to lose.  Even if he accomplishes nothing but ingratiating himself to the Republican establishment, it will have been worth it.  As Nate Silver said,

Norm Coleman doesn’t have much of a future in electoral politics. Defeated Presidential candidates sometimes have nine lives, but defeated Senatorial candidates rarely do, and in his career running for statewide office, Coleman has lost to a professional wrestler, beaten a dead guy, and then tied a comedian. He doesn’t have much to lose by fighting this to its bitter conclusion.

The longer Coleman fights, the longer the Senate Democratic caucus goes without their 59th member.  And the fiercer he fights, the more he delegitimizes Franken and undermines him as a United States Senator.

In the end, both of those are good for the Republican Party. So if Norm fights hard enough, he might get rewarded with a nice bit of right-wing welfare to help him round out his days in Washington.  Because if we’ve learned nothing else from all this, it’s that Norm Coleman is Norm Coleman’s favorite special interest group.

Senator Al Franken (D-MN) (UPDATED X2)

Minnesota’s State Canvassing Board will make it official today:

The state Canvassing Board was poised to certify the results of the recount in Minnesota’s grueling Senate election in Al Franken’s favor _ but that doesn’t mean the race is definitely over.

The board was to meet Monday and was expected to declare which candidate received the most overall votes from nearly 3 million ballots cast. The latest numbers showed Franken, a Democrat, with a 225-vote lead over Republican Sen. Norm Coleman, who led Franken on election night.

But after the announcement, there will be a seven-day waiting period before an election certificate is completed. If any lawsuits are filed during that waiting period, certification is conditional until the issue is settled in court.

Norm Coleman is going to drag the court battle out as much as possible, since Minnesota law prevents Franken from being officially certified the winner–thus keeping him out of the Senate–until Coleman’s legal challenges are resolved.

I guess I can’t blame Coleman for doing everything possible to win–if the situation were reversed, I’d probably want Franken to do the same. But Coleman knows that it’s unlikely he’ll emerge as the winner, even if the courts rule in his favor.

So while Norm Coleman is doing what’s best for himself and for the Republican Party, maybe he should put those interests aside and do what’s best for the people of Minnesota, who deserve to be represented by their duly-elected Senator.

UPDATE: Here’s the substance of Coleman’s impending lawsuit:

Coleman’s lawyers promised a lawsuit over their claim that some ballots duplicated on election night wound up being counted twice in the recount.

The Coleman campaign also has a petition pending before the state Supreme Court to include 650 ballots that it says were improperly rejected but not forwarded by local officials to St. Paul for counting.

UPDATE II: That was fast:

The Minnesota Supreme Court has rejected Republican Norm Coleman’s request to count an additional 650 rejected absentee ballots in the state’s U.S. Senate recount.

The court’s ruling Monday likely paves the way for the state Canvassing Board to certify results showing Democrat Al Franken won the race. But Coleman’s attorneys have said they are likely to sue if he loses the recount, meaning it could be weeks more before the outcome is final.

Where’s The Beef?

As expected, Norm Coleman is taking the results of the Minnesota recount to court:

In a brief press conference, Norm Coleman’s campaign lawyers reaffirmed that they will challenge the result in court.

Coleman’s lead lawyer Fritz Knaak said the process in the recount was broken, and today’s events were just further proof of that. “We are prepared to go forward and take whatever legal action is necessary to remedy this artificial lead,” said Knaak.

But what, exactly, is their case? Coleman’s previous allegations about duplicate ballots was thrown out by the Minnesota Supreme Court. Simply alleging that the process is “broken” because your candidate didn’t win isn’t enough.

I’m sure Coleman will come up with some kind of justification for their legal challenges, but the fact that they’re going to court first and finding a reason to second is exceptionally telling.


The Minnesota recount is officially over.  The last absentee ballots were counted today.  And, in the end, Democrat Al Franken leads Republican Norm Coleman by 225 votes.

While Coleman will take the results of the recount to court, it will be nearly impossible for him to erase Franken’s margin of victory.  Barring an unexpected judicial upset, Al Franken will be the next Senator from Minnesota; his victory will be certified after Coleman gets his day in court.

And since Congressional inaugurations were today, Norm Coleman is no longer a United States Senator.  The GOP is refusing to let Franken be seated on a provisional basis until the courts have their say, which is fine.  But then Harry Reid shouldn’t allow Coleman to enjoy any more privileges than any other ex-Senator enjoys.

Senator Al Franken (D-MN).  I wonder what Bill O’Reilly thinks about that.