Let us not forget that wise men like Oliver Wendell Holmes and Justice [Benjamin] Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.
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.
ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.
I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up. And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.
But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.
And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.
And that goes down the line. When I get a case about discrimination, 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.When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.So those are some of the experiences that have shaped me as a person. [via Salon]
MYTH: "Empathy" is code for "liberal activist"
Media figures and outlets have focused on the purported controversy over Obama's May 1 statement that he would seek a replacement for Souter who demonstrates the quality of "empathy" and conservatives' criticism that Sotomayor, in the words of Long, "applies her feelings ... when deciding cases." Several media figures and outlets, including Fox News' Special Report and The Washington Post, have falsely suggested that Obama said that he will seek a Supreme Court nominee who demonstrates empathy rather than a commitment to follow the law. In fact, in the statement in question, Obama said that his nominee will demonstrate both. Other media have stated or advanced the claim that, in the words of a May 4 National Review editorial, "[e]mpathy is simply a codeword for an inclination toward liberal activism." But these media figures and outlets have ignored conservatives' history of stressing the importance of judges' possessing empathy or compassion.
Indeed, during his Supreme Court confirmation hearings, responding to Sen. Herb Kohl's (D-WI) question, "I'd like to ask you why you want this job?" Thomas stated in part: "I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does." Moreover, then-President George H.W. Bush cited Thomas' "great empathy" in his remarks announcing that he was nominating Thomas to serve on the Supreme Court. Sen. Kit Bond (R-MO) similarly stated: "Though his skills as a lawyer and a judge are obvious, they are not, in my view, the only reason that this committee should vote to approve Judge Thomas's nomination. Just as important is his compassion and understanding of the impact that the Supreme Court has on the lives of average Americans." In his review of Thomas' 2007 memoir, My Grandfather's Son (HarperCollins), former Bush administration lawyer John Yoo touted the unique perspective that he said Thomas brings to the bench. Yoo wrote that 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" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.
Additionally, several Republican then-senators, including Strom Thurmond (SC), Al D'Amato (NY), and Mike DeWine (OH), cited compassion as a qualification for judicial confirmation. For instance, during the confirmation hearings for Justice Ruth Bader Ginsburg, Thurmond stated that "compassion" was one of the "special qualifications I believe an individual should possess to serve on the Supreme Court," adding that "[w]hile a nominee must be firm in his or her decisions, they should show mercy when appropriate." Similarly, during the confirmation hearings for Justice Stephen Breyer, Thurmond said "compassion" was among "the special criteria which I believe an individual must possess to serve on the Supreme Court."
Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.
"Her high reversal rate alone should be enough for us to pause and take a good look at her record. Frankly, it is the Senates duty to do so," said Wendy Wright, president of Concerned Women for America."
By the way, can anyone point me to the video of the 1990 Saturday Night Live skit with Jimmy Smits where the news staff were doing ridiculously exaggerated pronunciations of "Neek-o-rah-gwa" and the like? I can't find it online or on DVD."And excerpts from the second, titled "It Sticks In My Craw":
...should we put Asian surnames first in English just because that's the way they do it in Asia? When speaking of people in Asia, okay, but not people of Asian origin here, where Mao Tse-tung would properly have been changed to Tse-tung Mao. Likewise with the Mexican practice of including your mother's maiden name as your last name, after your father's surname.
This may seem like carping, but it's not. Part of our success in assimilation has been to leave whole areas of culture up to the individual, so that newcomers have whatever cuisine or religion or so on they want, limiting the demand for conformity to a smaller field than most other places would. But one of the areas where conformity is appropriate is how your new countrymen say your name, since that's not something the rest of us can just ignore, unlike what church you go to or what you eat for lunch. And there are basically two options — the newcomer adapts to us, or we adapt to him. And multiculturalism means there's a lot more of the latter going on than there should be." [The Corner via Wonkette]
Additionally, as Rob Kar at PrawfsBlawg found, the 2000 edition of the Almanac painted, on balance, a much more positive image of Sotomayor than the more recent edition that Hannity quoted. Indeed, the 2000 edition lacks any description of her being a “terror” or “out-of-control.” Instead, she is described as “not rude in any way, but she’s exacting,” “professional,” and “all business”:
Lawyer’s found Sotomayor to be demanding. “I think she’s fine.” “She can be tough. She’s not rude in any way, but she’s exacting.” “She’s all business.” “I’ve never had any problem with her, but I know some lawyer’s don’t care for her temperament.” “She can be tough as nails, but, in truth, I think some lawyers give her a hard time or are threatened by her. She’s very accomplished and clearly smart, and, in truth, I think they’re intimidated. She has always been decent enough to me.” “She’s professional. She’s not quite as friendly or as approachable as some of the other circuit court judges are. She’s a little more stern.” “She’s very smart and well-prepared, and she expects lawyers to rise to her level. She has very little tolerance for lawyers who can’t match her intellectually.” [Emphasis mine, on the statement that I think pretty much says it all about this particular argument]
“Some lawyers just don’t like to be questioned by a woman,” Judge Calabresi added. “It was sexist, plain and simple.”He said Judge Sotomayor’s forceful and lucid arguments had persuaded him to reconsider his position in a number of instances. “And I’m a tough act,” he said."
Bolton said the source was drawing, "a deductive link," between Sotomayor's thoughts on Puerto Rican food and her other statements. And I guess the chain goes something like this: 1). Sotomayor implied that her Latina identity informs her jurisprudence, 2). She also implied that Puerto Rican cuisine is a crucial part of her Latina identity, 3). Ergo, her gastronomical proclivities will be a non-negligible factor for her when she's considering cases before the Supreme Court." [TalkingPointsMemo/TPMDC]
Advocates Line Up to Praise Sotomayor from Womens eNews