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The “Robot Theory” of Supreme Court Justices

The confirmation hearings for Sonia Sotomayor begin today in the Senate. The politics will be intense, as Republicans attempt to attack Sotomayor without appearing to be racist and thus anger Latinos. Much noise is going to be made about “identity politics“, especially Sotomayor’s comment in 2001:

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.

Republicans will say that they want a justice who follows the “rule of law”, not one who uses her “life experiences”. But they are being hypocritical. The decision of Sotomayor’s that Republicans protest the most, “Ricci v. DeStefano” is a clear case where Sotomayor stuck to the “rule of law”, but conservatives are upset because she was not an activist judge! And furthermore, Republicans didn’t object when Samuel Alito talked about how his life experiences would affect him as a Supreme Court Justice.

Electoral Vote has an excellent article about how statements that Supreme Court Justices should merely follow the “rule of law” — interpreting the constitution like a robot — are silly. Their example is the recent case of Savana Redding, the 13-year-old girl who was strip searched at school because a classmate accused her of having an ibuprofen pill. Was this search constitutional? The fourth amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …

But unfortunately, it doesn’t define what is “unreasonable”. That’s where life experiences come in!

So when a Senator asks Sotomayor whether she is going to stick to the “rule of law” and merely interpret the constitution, you will know that this is just political grandstanding.

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7 Comments

  1. TJ wrote:

    “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.”

    This comment is offensive and wrong. I don’t think this should necessarily eliminate her from a potential SCOTUS position, but it’s still an offensive thing to say. Try reversing it…

    “I would hope that a wise white male with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life.”

    That would be decried as one of the most offensive things ever to be said by a SCOTUS nominee. I haven’t looked into the context of the statement, and I probably should, but I’m not sure the statement can be justified. What is she trying to say? White males don’t have experiences? Their experiences aren’t “rich” enough? They’re too stupid to be able to use their experiences to reach a conclusion? [Latina] women’s opinions and conclusions are by definition just better than a white male’s? Why is it ok to say something blatantly offensive just because it’s being directed toward the majority and not the minority?

    All that being said, I agree with the general point of the post about Republican hypocrisy. I think their [public] opposition to the comment is not the same as what I said – they’re more concerned with “Judicial Activism,” which is a made up term to describe a left leaning judge doing what all judges do.

    Monday, July 13, 2009 at 10:09 am | Permalink
  2. Iron Knee wrote:

    TJ, I might agree with you that — taken out of context — this remark sounds offensive. But the context is definitely significant: Sotomayor was discussing the importance of diversity in adjudicating race and sex discrimination cases. There is a good discussion (including the statement in context) at http://mediamatters.org/research/200905260050

    Is it racist to believe that a minority member might be better able to judge cases involving racism and discrimination? You ask “White males don’t have experiences?” But the context is that white males have fewer experiences with racism and sexism. Isn’t that fairly obvious?

    Incidentally, former Bush Justice Department lawyer John Yoo said that Clarence Thomas “is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him.” Nobody objected to his statement then, although Yoo’s statements about Thomas didn’t stop him from attacking Sotomayor.

    I guess this is just another example of conservatives rejecting moral equivalency.

    Monday, July 13, 2009 at 12:35 pm | Permalink
  3. Sammy wrote:

    IK, just a suggestion: Maybe when printing the now-famous “wise Latina” quote, include the whole paragraph and a half of what she said. That specific phrase was actually a her own version of a re-quote of a previous (female) Supreme Court nominee, in an attempt to illustrate that wise men on the Court have made less than wise decisions in the past.

    I will guarantee you that TJ won’t actually go read the whole quote. He’s made up his mind already, much like our Republican legislators who had their arguments against Sotomayor BEFORE she was even announced as the nominee.

    Monday, July 13, 2009 at 2:14 pm | Permalink
  4. Sammy wrote:

    TJ, when you say, “I haven’t looked into the context of the statement, and I probably should…” you have already removed any shred of credibility you might have in any argument you make.

    Seriously, shouldn’t opinions be formed AFTER researching the subject?

    Monday, July 13, 2009 at 2:17 pm | Permalink
  5. starluna wrote:

    Personally, I find the following a significantly more offensive statement:

    “Some might question whether encouraging homemakers to become lawyers contributes to the common good.”
    -John G. Roberts, Jr (now Chief Justice of the Supreme Court

    This quote came from a memo when Roberts was working for Reagan. It was in response to a request from Linda Chavez to enter her deputy into a contest to honor women who changed their lives after turning 30. He noted in the memo that the woman in question had motivated several former stay-at-home moms to seek a law degree. Then he made the above comment.

    Some interpret this “quip” as an anti-lawyer joke; an example of his self-deprecating humor. But considering Roberts’ consistent opposition to any laws that strengthen women’s rights, I think the only fair question to ask is if he would have made the same joke if the people being encouraged to go to law school were men. My guess is the answer to that question is no.

    Monday, July 13, 2009 at 2:40 pm | Permalink
  6. starluna wrote:

    Oh, here’s another one to add to the offensive quotes of Supreme Court Justices:

    “I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by my ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed.”
    -William Rehnquist (former Chief Justice)

    Monday, July 13, 2009 at 2:50 pm | Permalink
  7. Iron Knee wrote:

    Sammy, see my post today http://www.politicalirony.com/2009/07/14/when-context-is-everything/ which has the entire Sotomayor quote in context. And TJ, if you’re still listening, do you still think her statement was offensive and wrong?

    Tuesday, July 14, 2009 at 2:38 am | Permalink