Seeking to block her confirmation to the Supreme Court, Sonia Sotomayor’s critics will call her some combination of the following: radical, pushy, racially insensitive and lacking judicial smarts.
But very few of her critics will say it so bluntly.
Instead, they’ll use different phrases to make similar points – albeit more delicately. Sotomayor’s critics are calling her a “judicial activist,” who engages in “identity politics,” and has prompted concerns about her “temperament” as well as her “intellect.”
Talk radio host Rush Limbaugh was one of the few willing to cut through the polite phrases on his broadcast Tuesday. “Here you have a racist — you might want to soften that, and you might want to say a reverse racist,” Limbaugh said of Sotomayor, referring to an employment-discrimination case where she ruled against white firefighters.
Barely 24 hours into Sotomayor’s nomination, the battle lines already are hardening over the New York federal judge, even as Republicans say they probably don’t have the votes to stop her. Senate Republicans hope to make the fight over not only Sotomayor – but also Obama’s judicial philosophy in hopes of painting him as a liberal out-of-step with mainstream voters.
Meanwhile, their conservative allies began laying down the arguments for a long summer confirmation fight, as the White House prepared its defense. Here is how critics will take on Sotomayor, and how her allies will fight back:
The charge: She lacks the judicial “intellect” to be a Supreme Court justice.
The claims: This argument is one of the most politically explosive of the charges now coming in from the right – entwining issues of class, ethnicity, education and politics into a combustible mix.
Most of this commentary stems from Jeffrey Rosen’s articles in The New Republic entitled “The Case Against Sotomayor.” He quoted former Sotomayor clerks saying she wouldn’t be an “intellectual counterweight” to the conservative justices, and one who said simply that Sotomayor is “not that smart.”
Sotomayor’s critics have embraced the allegation – John Derbyshire, writing on National Review Online in early May, commented, “Judge Sotomayor may indeed be dumb and obnoxious; but she’s also female and Hispanic, and those are the things that count nowadays.” And former Bush political strategist Karl Rove questioned on Fox News Tuesday evening whether Sotomayor has the “broad intellectual powers” to be an influential justice. Sen. John Ensign (R-Nev.) also raised questions about her “intellect.”
Critics also note that the Supreme Court has reversed or disagreed with seven decisions Sotomayor authored as a district or appeals court judge.
The pushback: This could be dangerous territory for conservatives, because it opens them up to charges of racial stereotyping because they are criticizing the intellect of a Hispanic woman, and an accomplished one at that. Democrats already are pushing back hard at the suggestion Sotomayor isn’t up to the job – noting that she graduated summa cum laude and Phi Beta Kappa from Princeton and was an editor of the Yale Law Review.
Still, the White House seemed sensitive enough to the criticism that President Obama singled out Sotomayor’s smarts repeatedly as he introduced his nominee at the White House. Among the qualifications for the Supreme Court, Obama said, “First and foremost is a rigorous intellect.”
Other Sotomayor defenders echoed the president later in the day, including NAACP President Benjamin Jealous, who said in a statement: “Judge Sotomayor is an outstanding legal choice, one of the most brilliant legal minds in our nation’s judiciary.”
As for the overturned rulings, they span tax, securities, copyright and environmental law and don’t fit any particular ideological pattern. “She’s got a reversal rate that’s basically the median,” said Tom Goldstein, a lawyer who practices regularly before the court and runs the popular ScotusBlog.
The criticism: She engages in reverse discrimination.
The claims: Get ready to hear a lot about Ricci vs. New Haven, a case where white firefighters were stripped of promotions after no black firefighters passed the promotions test.
Already, some on the right are comparing Frank Ricci and his fellow New Haven smoke-eaters to the men who died on 9/11 and accusing Sotomayor of reverse discrimination for taking away their promotions.
That’s a potentially potent line of attack, one that goes right to the heart of lingering racial resentment among whites about affirmative action – because in this case, Ricci argued, the white firefighters were qualified for those promotions.
Add in Sotomayor’s already oft-quoted 2001 speech — “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” – and conservatives will try to paint her as a race-obsessed jurist who will tilt the scales against whites every chance she gets.
“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,” wrote Ilya Somin, an assistant professor of law at George Mason University School of Law. “Worse, it implies that she believes that it is legitimate for judges to base decisions in part on their ethnic or racial origins.”
The pushback: Sotomayor’s supporters argue that she’s only stating the obvious – that people of diverse backgrounds bring those experiences to the bench. "I think if you look at the context of the longer speech that she makes, I think what she says is very much common sense in terms of different experiences, different people," said White House spokesman Robert Gibbs.
Obama also cited her up-from-the-Bronx background as proof that she has the “common touch” and would be committed to “equal justice under the law.”
As for the Ricci case, defenders of the brief order Sotomayor signed in the firefighters case said it was appropriate because several previously decided Second Circuit cases clearly established that public employers, like the New Haven Fire Department, had the right to cancel the exam results to avoid a potential lawsuit from minority firefighters contending that the exam was biased.
The charge: She’s a liberal judicial activist intent on making laws from the bench.
The claims: This is one of the oldest arguments in the book against a Democratic nominee, but it’s one Republicans in the Senate believe can pay off for them as they try to paint Sotomayor -- and by extension, Obama – as out of touch.
Not only that, they claim that she bends the law to fit the result she desires, instead of taking the strict-constructionist route of interpreting the law, not creating it from the bench.
Exhibit A in this argument is a 2005 video of Sotomayor saying that “the Court of Appeals is where policy is made” — which conservatives say is a straight-up admission that Sotomayor views her role as creating law, not interpreting it. (In the tape, Sotomayor corrects herself: "And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know.”)
Sen. John Cornyn (R-Texas) summed up what Republicans would be looking for in judging Sotomayor: “impartiality, integrity, legal expertise and judicial temperament . . . She must prove her commitment to impartially deciding cases based on the law, rather than based on her own personal politics, feelings, and preferences.”
Conservatives also point to two of Sotomayor’s rulings, one where she said states don’t have to recognize the Constitution’s right to bear arms, and another case where her ruling in a legal-liability case was overturned 5-4 by the Supreme Court – which said she tried to expand the law too broadly.
The pushback: White House officials and other Sotomayor defenders have argued her comments are being taken out of context. On the 2005 speech, Gibbs said that Sotomayor was only saying that lower courts deal with individual cases but the appellate courts deal with “complex legal issues and constitutional theory."
And Goldstein said claims that Sotomayor is a liberal activist are “thin” and say more about those making the charge than they do about the judge.
“There’s no more reason to believe Sonia Sotomayor is an out-of-control liberal than there is to believe Sam Alito is an out of control conservative,” he said.
The charge: She’s too brusque and rude to be on the court.
The claims: This argument also surfaced in New Republic pieces earlier this month which quoted anonymous sources disparaging Sotomayor, one of whom called Sotomayor “a bully on the bench.” The stories also noted that anonymous descriptions of Sotomayor in the Almanac of the Federal Judiciary said “she does not have a very good temperament," “abuses lawyers," and “behaves in an out of control manner.”
Wendy Long of the conservative Judicial Confirmation Network said questions about Sotomayor’s “judicial temperament” are entirely legitimate. “I’m a little surprised about this pick,” Long said. “I would have thought that Obama was looking for a William Brennan, a charming charismatic figure who is persuasive of her colleagues. That certainly hasn’t been the case on the Second Circuit where there are some questions about how nicely [Sotomayor] plays with others.
The pushback: Sotomayor’s friends and colleagues have complained, on the record, that the New Republic articles amounted to character assassination. They also rejected the assertions. Sotomayor “knows how to pull out the best in people with whom she works, how to motivate people through her words and conduct, and how to forge deep and abiding relationships with people from all walks of life, and from all political stripes and ideologies. She is courageous and fearless,” a former clerk, Rob Kar, wrote.
“I feel confident if she were a guy this would not be an issue. It’s silly,” Goldstein said. “She’s tough and she doesn’t back down. That’s not different than a lot of judges.”
For his part, Rosen today endorsed Sotomayor’s candidacy, acknowledged she wasn’t his first choice, and accused conservatives of “willfully” misreading his articles. “I hope and assume the White House wrestled seriously with those questions of temperament and weighed them against Sotomayor's other obvious strengths,” he wrote.