Friday, May 29, 2009

Sotomayor and Objectivity, Again

Myca (in comments) provides us with these quotes from Sotomayor:
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.
See now, those are clear expressions of the sane view. And that's very good news to me.

(Technically, we should probably just note that we now have evidence on both sides of the issue, but I'm getting unpopular enough as it is, so I'd better not be too punctilious here. Equivocal, possibly-nutty claims on the one hand versus unequivocal, sane claims on the other makes it pretty clear where the smart money should be.

I will insist on one point, though: I still believe it was wrong to automatically and defensively dismiss the Po-Mo-y interpretations of Sotomayor's claims in the Olmos lecture. Anybody familiar with the intellectual left would recognize those claims and realize that they are most at home on that left. And also: such claims survive in part because it's so easy for liberals to interpret them as being benign. But since its common for liberals to interpret them benignly, it's also common for liberals to utter the claims, intending to express something benign. (Which, of course, I suggested in the original post. I've always made it clear that I would bet on the benign interpretations.)

Sadly, my guess is that this is just the tip of the us-versus-them iceberg, and that more apologies for the illiberal left await us in the future. This is, in fact, one way in which conservatives gain power: liberals gain power, then the leftier-left begins to reassert itself, liberals are fine with that and, in fact, dismiss objections against them or actively defend them, centrists get fed up with the patent leftist nonsense, then they move back to the right. I've said many times that that's what I think happened during the Clinton administration, when liberals defended the illiberal-left PC movement on campuses. I know a whole slew of people who were driven rightwards by such nonsense. I hypothesize that there's a decent chance it'll happen again this time around.

However, with regard to Sotomayor in particular: I'm way heartened by the quotes Myca dug up.


Anonymous Lewis Carroll said...

Though I'm only able to speak for myself, I wouldn't say you're getting unpopular Winston. Your inquiries are 100% legit, AFAIC.

1:53 PM  
Blogger Winston Smith said...

Thanks dude. And I appreciate you working hard to keep me on the straight and narrow--and, in fact, I was just about to say that anyway, before I saw this comment.

2:23 PM  
Anonymous Lewis Carroll said...

No prob Winston.

Everyone needs people to mark their opinions to market with and keep their thinking from being too insular. If I didn't think highly of your opinion, why the hell would I bother arguing or discussing things with you? I also see no point in talking only to people who always agree with me. Plus you admit when you're wrong, something which a lot of people, esp in the blogosphere, find hard to do.

Anyhow, this is OT, but you might be interested in this article I found about interrogation methods:

I know we've pretty much beaten it to death (pardon the pun), but this one contained some stories from Iraq that I had never heard before.


10:06 PM  
Blogger Jim Bales said...

Let me second Lewis -- your inquires are absolutely ligitimate. And, the spirited debate in the comments is a sign that we care about what you think and post. So, please don't stop!

My position is simply that:
Yes, one can read her statement as a squishy "there is no objective reality" PoMo BS. However,
1) This is not a consistent theme in her writing or her decisions, and
2) There exists an alternative, sane, interpretation that is still reasonably consistent with her words.

Therefore, I consider her sane and rational, until further evidence otherwise appears.


10:06 AM  
Blogger tehr0x0r said...

OK, been moving the past two weeks so while this is a topic I would have normally jumped on much sooner I just didn't have the time. Sooooo here we go...

I don't think that there is any doubt she is "sane and rational". She is clearly a well spoken woman with a long history of cases that as far as I can see don't have any irrational rulings. That said I don't want to see her on the court because when it comes to equal opportunity and affirmative action she has made it clear that race is as important, if not more so than experience. Now, there is a strong argument to be made that this is if not a rational at least not an irrational view to hold. Given the history of this country I certainly don't blame some people for feeling we need to give extra opportunity to minorities which have been traditionally oppressed and restricted. That said I am personally of the view that the best way to make this country run fairly is to do away with affirmative action and make sure that we just find the best person possible to do whatever job we are trying to fill.

In her 2001 speech the fact that she even mentions race worries me. While I think what she meant to say in that speech was "I would hope a person with a richness of life experiences would more often than no reach a better conclusion than a person who has not" the fact that she used "Latina woman" and "while male" does worry me. Race and gender shouldn't be issues here, but clearly even to her they are, otherwise why mention them.

In addition her recent ruling that a test should be thrown out because it didn't qualify enough minorities is equally worrying. As long as the test was based on things one might need to know for the promotion keep it. Make sure we work to educate everyone (another story for another day) but then use the results, otherwise we are just creating resentment that will be counter productive.

That said, I do think she is rational and while I disagree with her views on this issue and for that reason would rather see someone else on the bench, it doesn't mean she won't make a good justice and it certainly doesn't mean that she is irrational and a loony leftist.

4:51 PM  
Anonymous Lewis Carroll said...


I think you're mistaken in your belief that it was Sotmayor's own beliefs that led to her decision in the Ricci case. Now, you can argue that the law as written was wrong, and that race-preferenced decisions etc. are wrong, but if you believe that then your beef is with the New Haven County and Connecticut legislatures, since it was their laws that Sotomayor was applying in that case:

"Inveighing against Sotomayor's Ricci decision by touting all the sad things that happened to Frank Ricci (Krauthammer: "he spent $1,000 on books, quit his second job so he could study eight to 13 hours a day and, because of his dyslexia, hired someone to read him the material") is to demand that Sotomayor do exactly that which they claim is so inappropriate and which they accuse Sotomayor of doing: namely, deciding cases based on emotion, empathy and political views about affirmative action rather than the law and judicial precedent.
I literally can't fathom a more glaring self-contradiction than those who are simultaneously objecting to the use of "empathy" in judicial decision-making and arguing that Sotomayor's Ricci decision was bad because of all the unfair things that happened to Frank Ricci or because of how bad affirmative action is. Anyone arguing that Sotomayor wrongly decided Ricci by playing up the emotions of the case -- rather than by citing law and binding judicial precedent, including Second Circuit and Supreme Court cases on the topic -- is, by definition, advocating that judicial decisions be made based on empathy and/or the substitution by a judge of her own political views for those of the democratically elected officials in New Haven. Isn't this too obvious -- even in our political culture -- not to be immediately understood by everyone?"


More on her strict adherence to the law, and non-brooking of political correctness here:

Again, affirmative action yes or no is another debate. But it's pretty clear that SS does a good job of not allowing her own political opinions to influence her judgements.

10:29 PM  
Blogger tehr0x0r said...

The issue I have here is that she decided that a law that is written improperly was valid. The primary reason the tests were rejected was that it would “create a situation in which African-Americans are excluded from promotional opportunity on both the Captain and Lieutenant positions and Latinos are excluded from promotional opportunity on the Lieutenant examination.”

Based on my interpretations of Equal opportunity removing the tests for this reason is a violation of the Equal opportunity for those who passed. Everyone was given the same opportunity to take the same test and if they chose to get the study materials and study for the test that was there choice. There was no one who prevented the minority candidates who failed from getting the same info as those who passed. I don't care about Frank Ricci spending extra time money or anything else on the tests. All I have an issue with is that they were rejected due to the fact that they didn't give enough minorities promotions. There was no violation of equal opportunity as everyone could have received the materials if they chose to get them. One might argue that the fire department should have ordered copies for the department but that doesn't change the underlying issue I have with throwing out the test results. Based on all of this I personally feel that she was wrong on this issue, maybe it wasn't her personal race that affected the decision this time (I still argue she has the bias due to her other comments) but she was still wrong in my opinion and for such an important issue I am encouraging my senators to vote against her.

As a Judge part of your job is to evaluate if a law is "constitutional" and in this case I think hiding behind the argument that she is "just enforcing the law" is bogus, her job is to review the law and go "hey this isn't a valid law"

It's would be like if the PA legislature passed a law that made me sell my car and buy a cheaper model because not enough minorities owned my model. If I sued a judge should rule that the law is invalid, not that I should have to sell my car because the law says so.

Ok the above example isn't exactly the best but I think it conveys the general idea.

7:47 PM  
Anonymous Lewis Carroll said...

That's a reasonable concern, but just to be clear what you're asking for here: you want a court to overturn a law which is supported by precedent (including, but not limited to Grutter v. Bollinger) as well as the actual lower court decision it was reviewing, on the basis that the court deems the law unconstitutional. Now, there's nothing wrong with that in principle, but that's the very definition of *judicial activism* and overriding of the laws made by the legislature, eschewing stare decisis etc. that sets the screeching mobs off.

But since, as I said, given that it is certainly a reasonable claim that a law that is unconstitutional should be overturned, precedent or no, there is an actual dispute here as to what constituted *discrimination* in this case, over and above the meta concern of affirmative action in general.

Unless I'm mistaken, the case turned on whether and to what degree the intent of the city should be taken into account:

"Should the constitutionality of New Haven’s actions depend on what the Court concludes New Haven intended to do? And is merit really constitutionally relevant?

The city argues that its action is not race-based because the relevant action is scrapping the test. The petitioners argue that the city’s action is race-based because the relevant action is failing to promote the top scorers based on their race. Of course both are plausible ways to describe the city’s action, just as “putting the key in the door,” “unlocking my office” and “going back for the book I forgot” are all plausible ways of describing my actions last night before I left work. How should we decide who is right? Should the Court try to uncover evidence of actual motives? We might try by asking a counter-factual question. Would the city scrap the test if the firefighters available for promotion were racially balanced? No. So refusing to promote the high scoring white firefighters is an apt description. Would the city refuse to promote the high scoring white firefighters if it could only do so by using explicit racial criteria? Here, the answer is less clear. The city emphasizes that it didn’t use these methods, suggesting that its decision was, at least in part, taken because this race-neutral method was available. The Court’s analysis of whether New Haven’s action violates Equal Protection should not turn on the answer to this counter-factual question. In analyzing the constitutional requirement of Equal Protection, we should ask instead: what is the best way to describe the action? This question does not ask what the city intended, what it thought it was doing, what it would have done if…. Instead, it asks what is the best way to understand or interpret the action?


1:04 PM  
Anonymous Lewis Caroll said...

Second, are the city’s intentions relevant to the action’s permissibility? In order to discuss this question, I will assume that the action is best described as failing to promote the high scoring firefighters based on their race. If this is the city’s action, does it matter whether they do so in order to promote racial balancing or in order to attempt in good faith to comply with Title VII, or for any other reasons? It is notoriously difficult to ascertain the actual motives of governmental actors for a myriad of reasons, not the least of which is that it is difficult to determine one’s own motives at times even though one has more direct access to these. The relevant question is not why they acted but whether the action is permissible. The question the Court should focus on is this: Can a fire department refuse to act on the results of a promotional exam when using the exam yields results that present a prima facie disparate impact claim under Title VII?"


Moreover, as regards:

"Based on my interpretations of Equal opportunity removing the tests for this reason is a violation of the Equal opportunity for those who passed. Everyone was given the same opportunity to take the same test and if they chose to get the study materials and study for the test that was there choice."

The key phrase here being 'based on my interpretations of equal opportunity'. Because given the same set of facts, one could argue that there was no 'equal opportunity', since if there was we would see statistical correspondence between the composition of the groups taking the exam and the groups ending up in managerial positions. Now, it could be that the sample is too small to be statistically significant, but the town could also have reasonably considered the *test itself* to be discriminatory since the outcome was so disparate from the statistically expected outcome. Because there are only three possible interpretations of a lack of proportional minority success on the exam: 1. the minority in question is inherently inferior in ability, 2. the test somehow handicaps against the minority, or 3. the results are a statistical outlier.

Plus, as I mentioned above, the Supreme Court has found in the Bakke, Gratz and Grutter cases that the state can have a 'compelling interest' in diversity, it would seem that your view of the constitutionality of such laws is in the minority. So as I said at the outset, while it's reasonable to demand that even duly adopted laws that conflict with the constitution should be overturned, your opinion that the judges are "hiding behind just enforcing the law" is a very uncharitable reading of what SS and the other judges were doing, IMO. I personally am loath to attempt mindreading, especially when the party in question (SS) has shown a penchant for setting aside her own obvious political preferences (e.g. Pappas v. Giuliani) and her decision comports with settled law.

If it was such an obvious and settled logical point, there wouldn't be much dispute, as there obviously is:

1:08 PM  
Blogger Tom Van Dyke said...

Judge Sotomayor:

"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."

"...continuously to judge when those opinions, sympathies and prejudices are appropriate."

Appropriate? Surely there's more context than this. Justice Taney based Dred Scott on "opinions, sympathies and prejudices," and no doubt considered them "appropriate."

I can barely look at this blog anymore, because I run into stuff like this that scares the bejesus out of me and then see it defended.

As for the Ricci case, unlike the rightosphere that is appalled on general principles, and the leftosphere that defends her judgment on equally general principles, and leaving aside whatever Sotomayor's general principles on affirmative action might be [yeah, right], her opinion with the majority seems fine legally---if the city chose, out of prudence, to discard the test results and promoted nobody, unless there's a law that says top scorers get promoted, the city can do whatever it wants, out of prudence.

Nobody ever said that "opinions, sympathies and prejudices" are out of bounds for legislatures and executive branchers, especially sympathies. We are not robots. It's just that once that creeps into the judicial branch too, we are screwed---a nation of men, not laws.

6:54 AM  
Blogger Winston Smith said...

I don't understand how anybody can NOT be concerned about the Ricci case, because I don't understand how anyone can not be concerned by such affirmative action policies and decisions. Even those of us who are generally in favor of at least some affirmative action have to admit that these are absolutely gut-wrenching decisions, and that we may very well be doing something very, very wrong. There's just no way to be happy about it.

Well, again, I think there's a benign reading of:

"...continuously to judge when those opinions, sympathies and prejudices are appropriate."

and a sinister reading. On the benign reading, she's saying something like:

Look, sometimes we're inclined to favor A over B, but we have to step back and judge whether A is genuinely in the right.

Roughly: in some cases I prejudicially believe that x, but stepping back I see that x really is the right thing to believe.

On the sinister reading, she's saying that prejudices per se can sometimes be o.k. ("appropriate"). That is, roughly: sometimes I see that my decision is prejudiced, but I can judge that it's o.k. for me to be prejudiced in this case. That is, permissible for me to make a decision that a non-prejudiced person would not make.

It's yet another utterance that may reveal a perfectly reasonable attitude...or it may reveal something else. It makes me nervous, but doesn't send me to DefCon 5 or anything, especially given her actual record of decisions.

I'm fairly sure, though, that liberals would not be as forgiving if a more conservative nominee had said so many things with possibly non-benign interpretations.

12:06 PM  
Anonymous Lewis Carroll said...

Am I the only one who still believes in quaint ideas like actions matter more than words, and that if one is going to bring charges of excessive bias and inability to judge dispassionately, one should adduce some substantive evidence of same?:

"Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1."

There's also my previous reference to Sotomayor's dissent in the Pappas v. Giuliani case in which SS could have just gone along with the majority, which would have pretty clearly satisfied her political preferences but violated the principle (freedom of speech) which she swore to uphold.

And speaking for myself, I don't really care that much about any government official's statements outside of performance in their official capacity. For example, Justice Scalia's statement in 2002 that government derives its authority from God, directly contradicting the Declaration of Independence's statement that it derives its authority from the consent of the governed, doesn't in particular concern me. I think he's wrong most of the time in the opinions he comes to, but I don't think there's a NECESSARY connection to the un-American view he has on popular sovereignty.

3:28 PM  
Anonymous The Dark Avenger said...

“When a case comes before me involving, let‘s say, someone who is an immigrant,” said the nominee for the Supreme Court, “I can‘t help but think of my own ancestors because it wasn‘t that long ago when they were in that position. I have to say to myself and I do say to myself, you know, this could be your grandfather. This could be your grandmother.”

“When I get a case about discrimination,” the nominee continued, “I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender and I do take that into account.”

Our fifth story on the COUNTDOWN: The smoking gun, the damming confirmation of reverse racism and reverse sexism from Judge Sonia Sotomayor? No, those quotes were from then-Supreme Court nominee, conservative judge, Samuel Alito, during his confirmation hearing in January 2006 when he was answering a question from Republican Senator Coburn.

So conservatives predicating their attempt at character-assassination of Judge Sotomayor on those exact points? You can collect your backsides from the coat check after the show because they‘ve been handed to you.


I think that it's better for judges to remind themselves and we the people that, having become judges, they don't, in that
memorable phrase from the movie Amadeus, "shit marble" as a result.

12:46 PM  

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