...I am also not favorably impressed with her notorious statement 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." Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought. Worse, it implies that she believes that it is legitimate for judges to base decisions in part on their ethnic or racial origins. Stuart Taylor's comments on Sotomayor's speech are telling:
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."
Of course it is inevitable that personal background will influence judicial decisionmaking to some degree. Sotomayor is right to imply that it often had a negative effect on the decisions of white male judges in the past. But there is a difference between recognizing an inevitable source of bias while striving to constrain it and actually embracing it. I much prefer a jurist who strives to get beyond his or her ethnicity in making decisions than one who rejects the view 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" and instead believes that we should embrace the fact that "our gender and national origins may and will make a difference in our judging."
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Finally, this may be a good time to remind readers that I have long argued that judicial philosophy and ideology are legitimate considerations for senators to take account of in deciding whether or not to oppose a Supreme Court nominee. Unlike some on the right, I took that view during the Bush Administration, and I hold the same position today. On that point, I agree with Barack Obama, who opposed John Roberts' nomination based on his judicial philosophy despite conceding that "[t]here is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge." Obama was, in my view, wrong in his specific objections to Roberts, but absolutely right in concluding that judicial philosophy should be considered in addition to professional qualifications when assessing judicial nominees.
UPDATE: Some commenters understandably question whether Sotomayor's credentials are really worse than Alito's were. Both of them spent comparable amounts of time as judges on a circuit court, and both had similar educational credentials at elite institutions. In addition, this post by Eric Posner (relying on methodology developed in this article by Stephen Choi and Mitu Gulati), shows that Alito's opinions and Sotomayor's have similar citation counts.
Nonetheless, I think that Alito's record is on the whole better than Sotomayor's was. In their composite ranking of federal circuit court judges (incorporating measures of quantity of output, quality, and "independence"), Choi and Gulati ranked Alito 16th out of 98 judges included in the study. Sotomayor was not included for technical reasons, but Eric reports that she would have ranked in "the bottom half." Eric cites data showing that Sotomayor's opinions are cited slightly more frequently than Alito's in court decisions and law reviews. But that difference is almost surely due to the fact that Second Circuit opinions are generally cited more frequently than Third Circuit ones (in large part because the Second Circuit includes New York City, which is the nation's most important center for commercial litigation and many types of white collar criminal litigation). I also base my view in part on a qualitative judgement. For years prior to his appointment, I often heard legal scholars and other experts describe Alito as one of the top conservative circuit court judges. Prior to her appointment, I rarely if ever heard Sotomayor described as one of the top liberal ones.
I may have been wrong in suggesting that Alito's preappointment record was "far" more impressive than Sotomayor's. But I still do think that he had a significant edge. That said, I reiterate my view that Sotomayor's credentials are good enough that she should not be rejected on qualifications grounds. The real objection to her is based on judicial philosophy....
Sotomayor nominated to SCOTUS
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This woman is going to to be a SC justice? I mean there's no question with the current structure of the congress.
Originally Posted by CockySOB
