Thanks,

Bud, what concerns me is that several leaders of the far right have called her nomination “affirmative action”. This suggests that she is underqualified and chosen based on her race. This is unfair and untrue. She is supremely qualified and is on par with Justice Alito – who was praised for his qualifications. Personally, I am fine if race was a factor in her hiring since she is highly highly qualified. None of the individuals who claim “affirmative action” have stated one person who is more qualified than Sotomayor.

Now, let’s look at the context of that quote that you questioning her ability to make a decision (I might add that no one has pointed to decision that she has made that was based on her sex or her race).

From Media Matters:

In fact, contrary to the suggestion that Sotomayor was commenting on the general judicial ability of Latinas and white men, Sotomayor was talking specifically about “race and sex discrimination cases.” From Sotomayor’s speech, delivered at the University of California-Berkeley School of Law and published in 2002 in the Berkeley La Raza Law Journal:

In our private conversations, Judge [Miriam] Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice [Ruth Bader] Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

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.

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.

The qualifications argument is a none starter for me. During my life time, I think everyone nominated to the Supreme Court has met the minimal standards of qualifications.

Anyone, the writers you quote from seem to have missed the substantial arguments made against Sotomayor. Here’s the question? Will Sotmayor rule by law or the empathies of the moment. Stuart Taylor has opened the question in the National Journal. Taylor writes:

Quoting Sotomayor :
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” — Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001

Taylor again quotes Sotomayor:
Sotomayor also referred to the cardinal duty of judges to be impartial as a mere “aspiration because it denies the fact that we are by our experiences making different choices than others.” And she suggested that “inherent physiological or cultural differences” may help explain why “our gender and national origins may and will make a difference in our judging.”

(Me: This is why she has been called racist)

Taylor concludes:
Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: “I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn’t lived that life” — and had proceeded to speak of “inherent physiological or cultural differences.”

ME: So I hope that Sotomayor, President Obama and the Democrats make the case for their new standard of law: empathy and ethnic identity versus the old goal of an impartial rule of law.

Identity Politics And Sotomayor

http://www.nationaljournal.com/njmagazine/openingargument.php

This is from the hated (by the Right) Media Matters:

But according to data compiled by SCOTUSblog, Sotomayor’s reported 60 percent reversal rate is lower than the overall Supreme Court reversal rate for all lower court decisions from the 2004 term through the present — both overall and for each individual Supreme Court term. Using SCOTUSblog’s data, Media Matters for America has also calculated the reversal rate for only federal appeals court decisions:

there are two good things about the data from Media Matters — first, they give you links so that you can actually look up the primary site of where the data comes from. Secondly, the 60% number actually looks exemplary, doesn’t it?

I have heard and read dozens of opinions on this issue, and I can look you straight in the face and say that no one is giving her any discredit for being Hispanic. That is patently false.

Yes, she has been to the same schools and the same courts, and so on, and since those are so similar, the ONLY thing that can be the distinguisher is the fact is that she has proven herself to be an activist judge, making policy from the bench, and touting her own ethnicity as being so (more) important.

Rove’s comment on her “intellect” is directly regarding her “judicial philosophy” which is what Gonzalez is pointing out. NONE of that is about her race; it’s about her judicial philosophy.