The Case For – And Against – Double Standards – The Ninth Justice

National Journal

Consider two judicial nominees, both of whom have won bipartisan support and praise for their distinguished service on lower courts.

Nominee No. 1 had been a not-very-active member of his grandfather’s all-male fishing club in Western Pennsylvania. It had a ramshackle old building with bunk beds, wooden tables and benches like a boys’ summer camp. He resigned two years before his nomination.

Nominee No. 2 was a member of a single-sex club described on its Web site as "a constellation of influential… decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships." That club has periodic meetings in New York and other cities and an annual retreat in Latin America, including cocktail parties with U.S. diplomats and host-country officials and panel discussions on public policy and business affairs.

Nominee No. 1 came under attack from the National Organization for Women and Senate Democrats. Patrick Leahy of Vermont, now chairman of the Judiciary Committee, fumed that the fishing club "invidiously discriminates against women," and thus that the nominee had violated the Canon 2 of the official Code of Conduct for U.S. Judges.

But hardly anyone is very concerned about Nominee No. 2’s club, excepting a few conservatives and my friend Michael Kinsley, the liberal columnist, for reasons of his own.

Court More Liberal Than Public Opinion – The Ninth Justice

National Journal

(This analysis updates my July 12, 2008, column.)

We in the media habitually describe the Supreme Court as made up of four conservatives, four liberals and one swing-voting centrist, Anthony Kennedy. These labels serve reasonably well to situate the justices on the ideological spectrum compared with one another.

But while the court is sometimes called "conservative," it looks pretty liberal if we chart the justices’ rulings and individual views against general public opinion, as measured by poll results on issues including abortion, race, national security, religion, gay rights, gun rights and the death penalty.

The four more liberal justices — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — all fall markedly to the left of public opinion on every one of the abovementioned issues. So does Kennedy, when it comes to national security, religion, gay rights, the death penalty and to some extent abortion. Judge Sonia Sotomayor is widely expected to be at least as liberal as Souter, whom she would replace.

If President Obama gets an opportunity to replace one of the five more conservative justices, the new majority will be quite dramatically to the left of public opinion. And voters will, of course, remain powerless to overturn the justices’ constitutional interpretations.

Justices Antonin Scalia and Clarence Thomas fall markedly to the right of center. But the same does not appear to be true — not yet, at least — of Chief Justice John Roberts and Justice Samuel Alito.

Firefighters Case: What Really Happened – The Ninth Justice

National Journal

I admire many things about Judge Sonia Sotomayor, especially her deep compassion for underprivileged people. I may well support her confirmation to the Supreme Court if her testimony next month dispels my concern that her decisions may be biased by the grievance-focused mind-set and the "wise Latina woman" superiority complex displayed in some of her speeches.

But close study of her most famous case only enhances my concern. That’s the 2008 decision in which a panel composed of Sotomayor and two Appeals Court colleagues upheld New Haven’s race-based denial of promotions to white (and two Hispanic) fire-fighters because too few African-Americans had done well on the qualifying exams.

The panel’s decision to adopt as its own U.S. District Judge Janet Arterton’s opinion in the case looks much less defensible up close than it does in most media accounts. One reason is that the detailed factual record strongly suggests that — contrary to Sotomayor’s position — the Connecticut city’s decision to kill the promotions was driven less by its purported legal concerns than by raw racial politics.

Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed Arterton opinion.

Judge Jose Cabranes, Sotomayor’s onetime mentor, accurately described the implication of this logic in his dissent from a 7-6 vote in which the full U.S. Court of Appeals for the 2nd Circuit refused to reconsider the panel’s ruling.

"Municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome — i.e., failed to satisfy a racial quota," Cabranes wrote.

GOP Can’t Complain About July Hearings – The Ninth Justice

National Journal

My quick reaction to the July 13 timetable just announced by Senate Judiciary Chairman Patrick Leahy, D-Vt., is that Republicans probably don’t have much basis for disputing it. As Leahy’s statement details, the timetable he is using gives the Republicans about as much time as Democrats had to prepare for the hearings of John Roberts and Samuel Alito. My quick reaction to the July 13 timetable just announced by Senate Judiciary Chairman Patrick Leahy, D-Vt., is that Republicans probably don’t have much basis for disputing it. As Leahy’s statement details, the timetable he is using gives the Republicans about as much time as Democrats had to prepare for the hearings of John Roberts and Samuel Alito.

In addition, in the case of Roberts and to some extent that of Alito, it took time to obtain documents the nominees had authored as Justice Department officials during prior Republican administrations. Since Judge Sonia Sotomayor has never worked for the executive branch, it appears that all or virtually all significant documents written by her as a government official — including her judicial opinions — are already public, with the exception of her time as an assistant DA in New York City. (Internal memoranda Sotomayor has written for her colleagues or clerks while on the bench will presumably be considered confidential, as has been true of past nominees.)

Should the confirmation hearings begin according to Leahy’s schedule, it would put Sotomayor on track to be confirmed by Aug. 7 at the latest — unless Republicans stretch out the debate or filibuster.

Can Only An ‘Activist’ Overturn Ricci? – The Ninth Justice

National Journal

To Josh Patashnik of The New Republic, my latest column was "a real head-scratcher." On the magazine’s blog, he refutes what he believes I argued — that "the Supreme Court should ban racial preferences because it’s what the majority of Americans want."

He concludes that "if any judicial philosophy qualifies as…

To Josh Patashnik of The New Republic, my latest column was "a real head-scratcher." On the magazine’s blog, he refutes what he believes I argued — that "the Supreme Court should ban racial preferences because it’s what the majority of Americans want."

He concludes that "if any judicial philosophy qualifies as ‘activist,’ then the one Taylor proposes — that the role of a court is to implement what it sees as the will of the public when the political branches fail to — surely qualifies."

To the contrary, a decision reversing Ricci would not stretch the meaning of the Constitution in the slightest. Rather, as my column stated, it would "vindicate the central thrust of the 1964 Civil Rights Act and the Constitution’s equal protection clause."

Race: Sotomayor And Obama Vs. Voters – The Ninth Justice

National Journal

Conservative critics of Judge Sonia Sotomayor may be digging themselves into a hole if they keep hurling the tired old "liberal activist" slogan at her. The reason is that her supporters can plausibly retort that these days, the Supreme Court’s conservatives are as activist as the liberals, especially on racial issues.

But conservatives and like-minded centrists can win the political debate if they focus not on buzzwords but on in-depth, civil discourse about the very big issue on which Sotomayor and her liberal supporters are most at odds — and the conservative justices most in tune — with the vast majority of Americans.

That issue is racially preferential affirmative action. By this, I mean the many forms of supposedly benign discrimination against whites and Asians that have been engineered over the past 45 years to advance blacks and Hispanics in the workforce, in college admissions, and in government contracting.

The long-standing public disapproval of such preferences was documented yet again by a major Quinnipiac University poll released on June 3, showing that American voters, by a lopsided margin, want them abolished.

Initiated in the 1960s as a temporary expedient, racial preferences may well become permanent if a Justice Sotomayor is eventually joined on the Court by a like-minded successor to one of the Court’s conservatives. (The justice Sotomayor would replace, David Souter, also supports preferences.)

The now-famous New Haven, Conn., firefighter case is a perfect symbol of how the sort of preferences she supports can operate as raw racial discrimination.

Olbermann’s Mosquito Bites – The Ninth Justice

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I hear that Keith Olbermann declared on MSNBC Tuesday evening that I am "runner-up" for his "hypocrisy award" and also "a fraud."

In case anyone takes Olbermann seriously, I identify below the false and misleading assertions of fact that he packed into his 60-second diatribe.

• Olbermann claimed that I characterized Sonia Sotomayor’s 1974 letter to the editor accusing Princeton University of discrimination as a "decisive" reason to oppose her nomination.

False. I wrote nothing close to that, and I do not see Sotomayor’s letter as disqualifying. I have consistently indicated that debate about this nomination should focus mostly on her judicial decisions and speeches, which I have analyzed at length. My only critical comment in my brief post about her 1974 letter was that "some may see [it] as evidence that she was predisposed to look for the worst, not the best, in the institution that had afforded her such opportunities."

Olbermann quoted that sentence, but then falsely implied that I had been far more damning — while omitting my statement in the preceding paragraph that others may see her success at Princeton as proof of her brilliance in overcoming the discrimination of which she complained.

Grading Sotomayor’s Senior Thesis – The Ninth Justice

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Judge Sonia Sotomayor said in a 1996 speech at Princeton University’s Third World Center (now called the Carl A. Fields Center) that when she arrived at Princeton in 1972 as her high school’s valedictorian, "I found out that my Latina background had created difficulties in my writing that I needed to overcome. For example, in Spanish we do not have adjectives. A noun is described with a preposition…. My writing was stilted and overly complicated, my grammar and vocabulary skills weak."

To catch up with her prep school classmates, Sotomayor recalled, "I spent one summer vacation reading children’s classics that I had missed in my prior education — books like Alice In Wonderland, Huckleberry Finn and Pride and Prejudice. My parents spoke Spanish; they didn’t know about these books. I spent two other summers teaching myself anew to write."

She taught herself well, graduating summa cum laude and winning the prestigious Pyne Prize in her senior year. The prize was for academic excellence and — Judge Sotomayor said in the 1996 speech — "because of my work with Accion Puertorriquena, the Third World Center and other activities in which I participated, like the university’s Discipline Committee."

These honors reflect, among other things, a high grade on Sotomayor’s 178-page senior thesis, La Historia Ciclica De Puerto Rico. The Impact Of The Life Of Luis Muñoz Marín On The Political And Economic History of Puerto Rico, 1930-1975.

We don’t know what the exact grade was, as far as I’ve seen, but an award-winning history professor — K.C. Johnson of Brooklyn College and CUNY Graduate Center — who read it at my request concluded that "the thesis would probably receive an A/A minus or an A minus." (Johnson and I co-authored a 2007 book on the Duke lacrosse rape fraud.)

Here is Johnson’s detailed assessment:

Study Finds No Sotomayor Bias in Race-Related Cases – The Ninth Justice

National Journal

The concerns that I and others have raised about Judge Sonia Sotomayor’s now famous "wise Latina woman" speech, and about her vote last year to uphold race-based discrimination in promotions among New Haven firefighters, raise this question:

Has Sotomayor exhibited a pattern of favoritism to minorities in race-related cases during her more than 10 years on the U.S. Court of Appeals for the 2nd Circuit?

The answer is no, according to Tom Goldstein of Akin Gump’s Washington office, a leading Supreme Court litigator. He has published on SCOTUSBlog, in two installments, the results of his own study of the 97 race-related cases Sotomayor has helped decide on the appeals court.

After summarizing statistics indicating that Sotomayor is not especially prone to rule for plaintiffs in discrimination cases and rarely disagrees with her 2nd Circuit colleagues in such cases, Goldstein concludes:

"Given that record, it seems absurd to say that Sotomayor allows race to infect her decisionmaking."

Others may look at the same cases and draw different conclusions. And Goldstein’s analysis does not altogether dispel my concerns that once on the Supreme Court, Sotomayor’s sympathies for particular groups may skew her views of the facts and the law. See my past columns here, here and here.

The Right Should Stop Demagoguing — And Obama Should Stop Distorting Facts – The Ninth Justice

National Journal

As has occurred with dispiriting regularity in recent decades, the current debate over filling a vacancy on the Supreme Court has been marred — already! — by a considerable dose of demagogy and false factual claims. It would be nice to see the media truth-squadding such stuff, without the usual double standards.

Take, for example, the wildly overheated denunciations of Judge Sonia Sotomayor by Newt Gingrich and Rush Limbaugh, on the one hand, and the demonstrably untrue assertions that President Obama has repeatedly made about the Supreme Court’s 2007 ruling against the now-famous Lilly Ledbetter, on the other.

Limbaugh has denounced Sotomayor as a "reverse racist" and a "hack" — adding that "Obama is the greatest living example of a reverse racist, and now he’s appointed one." Gingrich has also called her a racist and demanded that she withdraw.

"Hack?" Judge Sotomayor’s legal opinions may not be the stuff of brilliance, as some liberal critics have complained. But she is an accomplished jurist with many admirers and a stellar academic record at Princeton and Yale law School. She is also an inspiring, up-from-modest-origins American-dream life story.

"Racist"? Limbaugh and Gingrich based this imprecation on Sotomayor’s assertion in a 2001 speech that "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."

I, too, have criticized that assertion. But in the apt words of former Karl Rove aide Peter Wehner, now of the Ethics and Public Policy Center: