Judge Sotomayer's October 2001 speech ... the rest of the story

[nerdgirl 0]

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“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.”

When I heard those 32 words the first time, I cringed.

Did the mental substitution of “white upper class male” for “Latina woman” … … it’s .

I also wondered what was the context … or more precisely was it being quoted out of context?

h/t to [nerd137] for providing the link to the full speech. All 3,930 words of it.


More from Judge Sotomayer’s speech:

“We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud.”

“The statistics [which Judge Sotomayer cites in the speech, im-ever-ho are more indicting of residual racism than anything Judge Sotomayor has said/had quoted out of context - nerdgirl] I have been talking about provide a base from which to discuss a question which one of my former colleagues on the Southern District bench, Judge Miriam Cederbaum, raised when speaking about women on the federal bench. [i.e., here's the genesis of the topic and intellectual dsicussion that eventually leads to "the 32-word" quote - nerdgirl]

“Her question was: What do the history and statistics mean? In her speech, Judge Cederbaum expressed her belief that the number of women and by direct inference people of color on the bench, was still statistically insignificant and that therefore we could not draw valid scientific conclusions from the acts of so few people over such a short period of time. Yet, we do have women and people of color in more significant numbers on the bench and no one can or should ignore pondering what that will mean or not mean in the development of the law. Now, I cannot and do not claim this issue as personally my own. In recent years there has been an explosion of research and writing in this area.

“For those of you interested in the gender perspective on this issue, I commend to you a wonderful compilation of articles published on the subject in Vol. 77 of the Judicature, the Journal of the American Judicature Society of November-December 1993. It is on Westlaw/Lexis and I assume the students and academics in this room can find it.[i.e., she's talking about an issue that was part of scholarly legal discussion at the time.-nerdgirl]

“Now Judge Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then ‘as not capable of reasoning or thinking logically’ but instead of ‘acting intuitively.’

“While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases.”

Anybody seen the quote I highlighted in blue above before? Or heard discussion of that part of the speech? That’s completely contradictory to the assertions of racism based on a selectively excerpted 32-words.

“That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects.”

“Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. 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.”

Now there’s wisdom, imo. Instead of arrogantly pretending, she’s acknowledging a need to check one’s one assumptions. Not defensive about it. Acknowledging and working. Should not be novel … but perhaps is a novel perspective too often.

/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[rushmc 23]

I do not have near the concern over this as I do her comments that judges set policy from the bench.

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[TomAiello 26]

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More from Judge Sotomayer’s speech:

“We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud.”

I've heard this argument many times. I think it's totally wrong.

Arguing that the law must celebrate diversity (which is often appropriate in other settings) misses the fundamental point that in order to allow those other settings, the law must remain color blind. When you start tilting the scales of the law, you quickly engender resentment. The law must remain an impartial arbiter, not taking into account race, creed, religion, wealth or jump numbers.

I think that the best statement of this idea I've ever heard was from Atticus Finch, actually. I can't find the exact quote right now, but it was something to the effect that the reason why the courts must treat all equally is precisely because they are unequal in other areas.

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com

[nerdgirl 0]

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Arguing that the law must celebrate diversity (which is often appropriate in other settings)

She didn't say "law must celebrate diversity." She said something closer to it being "appropriate in other settings" and recognizing that pretending differences don't exist, including pretending residual racism & sexism doesn't still exist, does not benefit the legal process, i.e., acknowledging the need to be vigilent.

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I think that the best statement of this idea I've ever heard was from Atticus Finch, actually. I can't find the exact quote right now, but it was something to the effect that the reason why the courts must treat all equally is precisely because they are unequal in other areas.

That sounds a lot closer to the overall message of Judge Sotomayer's speech than much of the discussion revolving around a 32-word selectively culled excerpt has reflected thus far.

/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[TomAiello 26]

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That sounds a lot closer to the overall message of Judge Sotomayer's speech than much of the discussion revolving around a 32-word selectively culled excerpt has reflected thus far.

You mean when she suggests that jurists ought to selectively choose which of their own prejudices to impose upon their decisions?

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...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.

I'm not a fan. I want a judge who tries to suppress their own prejudices, not indulge them on a selective basis.

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com

[funjumper101 15]

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I do not have near the concern over this as I do her comments that judges set policy from the bench.

Marc, in case you haven't figured it out yet, judges set policy from the bench all the time.

When SCOTUS forced the end of the recounts and gave the 2000 election to Shrub, that was setting policy from the bench. When Plessy v Ferguson was decided in 1896, that was setting policy from the bench. When the California Supreme Court overturned Proposition 14 in 1964, that was setting policy from the bench. That decision is also a fine example of the weakness of the "will of the people" argument about Proposition 8.

What pisses you off, and liberals too, is when the "activist judges" gore your ox. You don't give a shit about the folks that get their ox gored when judges decide the way YOU think they should. When they don't, you call it "judicial activism", as though that was a bad thing. It is only a bad thing when it doesn't go your way.

[nerdgirl 0]

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I do not have near the concern over this as I do her comments that judges set policy from the bench.

For discussion of one example of her part of an appellate decision *not* to make new policy or legislate from the bench please see my comments on Maloney v Cuomo.

In that decision, the appelate court decided to look to the settled law at the time, acknowledging that the case may need to go to the SCOTUS to reconcile Presser v. Illinois, with District of Columbia v. Heller. As a non-lawyer, that sounds pretty reasonable. The per curium position, of which Judge Sotomayor was a part, was non-activist.

/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[rushmc 23]

and in case you have not figured it out

THEY ARE NOT SUPPOSED TOO!

Even though you example is poor....

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[rushmc 23]

So she can pick and chose when she does and when she doesnt?

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[BikerBabe 0]

they aren't supposed to?

did you learn about the whole "checks and balances" concept in high school civics class?

How else should the USSC be a check to the legislative and executive branches of our government if not by "setting policy from the bench" or being "activist?"

declaring a law/action unconstitutional is expressly checking the powers of another branch...and could easily be considered "activism" or "setting policy".

So how SHOULD the checking function be done?

Never meddle in the affairs of dragons, for you are crunchy and taste good with ketchup!

[nerdgirl 0]

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I think that the best statement of this idea I've ever heard was from Atticus Finch, actually. I can't find the exact quote right now, but it was something to the effect that the reason why the courts must treat all equally is precisely because they are unequal in other areas.

That sounds a lot closer to the overall message of Judge Sotomayer's speech than much of the discussion revolving around a 32-word selectively culled excerpt has reflected thus far.

You mean when she suggests that jurists ought to selectively choose which of their own prejudices to impose upon their decisions?

She doesn't do that. That's the point. The rest of the story.

There is no "ought to" or "should" other than being vigilant to recognize that one's own experience, whethr upper-class black or lower-class white, will have some baring one's perspective. Need to recognize that in order to reach the Finch ideal. And a lot more. She's tousling -- uses words like "wonder" and "continuously pondering" -- with complex ideas. It's not a 15-second sound bite, as much as some would like to reduce it to that.

And, in some ways, she does address that as well:

"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."

Not sure I agree with the 2nd sentence ... think it's stubborness much, much more often than an inherant limitation of ability. But I see the 1st & 3rd play out too often, imo.

She suggests something a lot closer to your recollection of the Atticus Finch ideal than much of the discussion revolving around a 32-word selectively culled excerpt.

Please see the large excerpt in the OP or the full speech.

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I'm not a fan. I want a judge who tries to suppress their own prejudices, not indulge them on a selective basis.

Then that sounds like you want a judge like Judge Sotomayer:

"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."

/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[nerdgirl 0]

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So she can pick and chose when she does and when she doesnt?

I don't know the context in which this comment is being made. I don't understand. (My lack of inderstanding not yours.)

/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[funjumper101 15]

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and in case you have not figured it out

THEY ARE NOT SUPPOSED TOO!

Even though you example is poor....

What information source has led you to that conclusion?

Do you think that the will of the people is parmount and should not EVER be overturned by a court?

Before you answer this, please research Prop 14 in Caifornia. Note especially the overwhelming popular support AMONG VOTERS for this policy, which was overturned by an "activist" court.

By your measure, what was done by the court was wrong.
History shows that the court decison was, indeed, correct, in spite of "the will of the people".

Overturning Jim Crow laws was highly unpopular in the south.

Once again, history shows that the court decisons were indeed, correct, in spite of "the will of the people".

[rushmc 23]

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So she can pick and chose when she does and when she doesnt?

I don't know the context in which this comment is being made. I don't understand. (My lack of inderstanding not yours.)

/Marg

Sorry

You gave an example of when she was not being an activist. She has clearly stated she believes iti has become the role of a judge to set policy from the bench. Hence my comment to when she is and when she is not setting policy.

I am concerned about a couple of replys here too. Those who think that is what the court is supposed to do.

Executive sets policy, legislative makes law, courts interpit the law.

If the court is setting policy then they are by default making law.

Here in Iowa the Iowa SC state the marriage law was not constitutional (I am not here to argue the merits of this) That is fine, that is what they do but, they (the Iowa SC) went a step further and said Iowa is to marry them. So, here we are now, in Iowa preforming marriages that have no law to support the action, the marriages just started because the court said they had too.

So, under which statute in Iowa are these couples now getting married?

The court should have told the legislature to fix it as they said this one law would not stand, However, the court does not have the power to order the state to marry anybody.

Sad really

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[rushmc 23]

The courts are to interpite the law. Nothing more. period. That is the role given to the courts under the constitution.

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[funjumper101 15]

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The courts are to interpite the law. Nothing more. period. That is the role given to the courts under the constitution.

You REALLY need to brush up on basic civics.
I learned this stuff in High School. You must have missed that part of class.

[rushmc 23]

Beter stated than I ever could

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Where We Stand: Our Principles On Restoring the Proper Role of the Courts

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America is edging towards a crisis in the role and operation of the federal courts—a crisis that threatens our constitutional democracy. Increasingly, we see judges ruling more on the basis of their personal opinions or their own particular view of the good society. In the process, courts regularly are ruling in ways that expand federal power and diminish the authority of the states and the freedom of citizens. As the courts have become more politicized, so has the judicial confirmation process. The political views of judges—or their perceived views—rather than their proven adherence to the rule of law is fast becoming the criterion for Senate confirmation. If we are to restore proper limits on government and protect our cherished freedoms, we must reverse this dangerous erosion of the proper role of the courts. To do this, the Administration must demand fidelity to the rule of law as the test of confirmation, the Senate must be pressed to change its rules to prevent obstructionists from holding up nominees, and the courts must be urged to enforce the federalism and limited government provisions of the Constitution.


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UPDATE: March 23, 2005
The Senate is making progress towards confirming good judges. Filibuster reform remains on the table. Meanwhile, the White House has been nominating, and in some cases re-nominating, good judges who understand the proper role of the courts.


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Principles

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Courts should rule according to law, not according to current social or political opinion.

From the time John Adams first popularized the phrase, American school children have been taught that ours is “a nation of laws and not of men.” This means that the U.S. Constitution and laws are supreme and have fixed, objective meanings that do not vary depending on who is in power. The Constitution is very much alive and relevant to protecting our freedoms today, but it does not vary in its meaning or protections depending on the fashionable trends or notions of any era.


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The federal courts should enforce protections for individual liberty and limits on government power, not protect the unconstitutional growth of government.

The Constitution imposes structural limits and responsibilities on both the state and national governments. The national government has no inherent powers; it possesses only those “limited and enumerated” powers conferred upon it by the Constitution. These federalism and separation of powers principles are designed not merely to enhance the power of one level of government over another, but to preserve individual liberty. Departures from them by Congress or the courts jeopardize our cherished freedoms.


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Judges should rule according to what the law really says, not what they would prefer it to be.

As Alexander Hamilton correctly noted in Federalist 78, it is the province and duty of judges to say what the law is rather than what they want it to be. Judges faithful to their constitutional role exercise legal “judgment” to enforce the original understanding of the law. They must not exercise their “will” as members of a political branch do. Otherwise, there would be no rule of law in America, only the oligarchic rule of judges.


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Judges should be nominated and confirmed based on their competence and respect for the rule of law, not according to their politics.

It is destructive of our form of government for politicized judges to impose activist rulings based on their own naked preferences rather than to apply the Constitution and laws fairly, as written and intended. Politicization of the judicial appointment process both undermines judicial independence and the normal constraints that reinforce proper judicial behavior and begets more activist rulings.


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Objectives

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Nominate and confirm to federal courts only individuals who have a proven record of fidelity to the Constitution, the rule of law, and the proper role of a federal judge.

The President and Senators should conduct a careful inquiry into a potential federal judge’s judicial philosophy, or the methodology he would use when deciding cases. It is not enough for a nominee simply to pledge to follow the rule of law without explaining what that means. A record of scholarship, prior opinions, or a discussion of important constitutional provisions should be pursued to determine whether the nominee appreciates what the rule of law requires, which includes a commitment to interpret and apply the Constitution and laws as they are written and were originally intended to operate. Yet a nominee should not be asked about his political preferences or how he would rule in particular cases—legal litmus tests. The ultimate measure of success will be whether there is more or less activist policymaking from the federal bench.


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Support the appointment and election of state judges who have the same fidelity to the rule of law and the proper role of a state judge and who will also interpret and apply the U.S. Constitution, laws, and respective state constitutions as they are written and originally intended to operate.

There should be equal vigilance concerning the fitness and qualification of state judges. State judicial candidates should be subject to careful evaluation, and appointing officials should be held accountable for the level of activism by state judges whom they have appointed. In states with an elected judiciary, citizens should educate themselves about the record of candidates for judicial office and should seek the advice of groups that are committed to the rule of law and proper interpretation of the Constitution and state laws.


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Change or clarify the rules in the U.S. Senate to prevent a minority of obstructionists from permanently blocking a majority of Senators from voting to confirm judicial nominees.

A minority of U.S. Senators is abusing the rules of the Senate by filibustering, or preventing a final up-or-down vote, on the confirmation of 10 federal judicial candidates who would be confirmed if a vote were ever taken. This Senate is the first in U.S. history to allow a permanent filibuster of a judicial nominee. The Senate may establish its rules for the consideration of legislation, but a filibuster of a judicial nominee not only violates the Senate’s constitutional duty to provide its advice and consent to the President’s nominees, but also violates the constitutional separation of powers because it thwarts the President’s obligation to make judicial appointments and hampers the administration of justice in the courts. The Senate should reform its rules, similar to the proposal outlined by President Bush in 2002, to require an up-or-down vote on each judicial nominee within six months of nomination. Failing that, a bare majority of the U.S. Senate should uphold a ruling of its presiding officer that filibusters of judicial nominees are not constitutional.


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Elected officials, in Congress and elsewhere, should criticize any legislation and policymaking that comes from the bench in the guise of judicial “interpretation.”

It is time to challenge a fundamental misconception that some have regarding the proper role of judges and the judicial system. There is a critical difference between political ideology, which is a set of political beliefs, and a nominee’s judicial philosophy, which is a theory of proper judicial decision- making. Political beliefs ought to play no role in a judge’s judicial philosophy. The rule of law is premised on the bedrock principle that law can be objectively determined and fairly applied to all no matter what judge or other official is in power. Thus, the application of the law should not vary depending on political ideology or elite trends. The House and Senate Judiciary Committees should report annually on when the rule of law has been subverted by the rule of judges. In addition, the President, governors, individual Members of Congress, state legislators, and state legislative bodies should collectively and routinely criticize individual decisions that are fundamentally wrong as a matter of law. Only through such vigilance will it be possible to reinvigorate the traditional constraints that encourage judges to render rulings based on the true meaning of the law rather than what they want it to mean.


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Encourage the courts,particularly the federal courts,to relimit the federal government to its limited and enumerated powers by adhering to their duty to enforce the federalism and separation of powers mandated by the Constitution.

Congress should cease passing laws that unconstitutionally aggrandize its own power or pretend to do something about a problem over which the national government has no authority to act. The federalization of crime is just one of many examples. A recent study estimates that there are now approximately 4,000 federal crimes, up from about 3,000 just 10 years ago. The Constitution makes reference to only three potential federal crimes, and most of Congress’s recent criminal legislation is simply duplicative of state laws, undermines state accountability for crime control, and diverts federal law enforcement officials from more crucial anti-terrorism responsibilities. However, courts have the ultimate responsibility to enforce federalism and the separation of powers. Invalidating congressional action is not just an option, but also an obligation. If the courts do not act to curb Congress’s ever-encroaching nature by delineating clear limits on its powers, the judges will have violated their oath to defend the Constitution. Citizens should be particularly insistent that any new justice appointed to the Supreme Court has the commitment and fortitude to do his or her duty.

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[rushmc 23]

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The courts are to interpite the law. Nothing more. period. That is the role given to the courts under the constitution.

You REALLY need to brush up on basic civics.
I learned this stuff in High School. You must have missed that part of class.

neck hurt?

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[rushmc 23]

Here is some brush up for you.

http://epstein.law.northwestern.edu/research/conferencepapers.2000APSA.pdf

It has been a while since I read this.......

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[BikerBabe 0]

who is "we" in your quoted position?

Never meddle in the affairs of dragons, for you are crunchy and taste good with ketchup!

[rushmc 23]

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who is "we" in your quoted position?

Sorry, I dont know the we you are posting about.

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[BikerBabe 0]

in the giant post you made. i think you forgot to provide the citation is all. I want to know where you quoted it from.

"Where We Stand:...."

Never meddle in the affairs of dragons, for you are crunchy and taste good with ketchup!

[rushmc 23]

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in the giant post you made. i think you forgot to provide the citation is all. I want to know where you quoted it from.

the Heritage site
Want the link?

I just googled the constitutional role of us courts

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[rushmc 23]

http://www.heritage.org/Research/Features/Mandate/2005/topic.cfm?topic=10

I thought I posted the page title. I see I didnt.
sorry

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[BikerBabe 0]

thank you.

so, in your opinion, was the ruling in Brown v. Board of Education improper?

Never meddle in the affairs of dragons, for you are crunchy and taste good with ketchup!