Strengthening Constitutional Self-Government

No Left Turns

Sotomayor

Robert Alt has a good piece in U.S. News on whether she can be impartial in judging, whether she can be a judge. He has also done a few interviews (CNN and Fox Business, on the right). While I don�t think her view that race and ethnicity may lead to "basic differences in logic and reasoning," will necessarily be enough to stop her confirmation, it will lead to a good conversation that could have lasting influence; and doubts will be sown. Even the front page Washington Post article admits the looming problem, as revealed by her summary order in Ricci v. DeStefano, and in which there is no constitutional basis for the decision. And then what if the Supreme Court overturnes it, with a constitutional argument? What then? The heart of her views on race and ethnicity and whether she thinks justice is possible will be very public, and not only on the Judiciary Committee. There is an outside chance...

Discussions - 2 Comments

Unfortunately, the claim that there is "no constitutional basis" for the decision is wrong, Peter, and the Washington Post article doesn't make that claim (as you seem to imply). The US position on the case is not that there is "no constitutional basis for the decision," but that it should be remanded for additional factual consideration of the question of pretext, which is quite different. Alas, neither life nor the law is simple.

More importantly, and in the spirit of the broader discussion about her views on race, Tom Goldstein recently looked at the 100 or so race-related cases that Judge Sotomayor was involved with, and finds it "absurd" to think that "race infects her decisionmaking" (for example, summary dispositions are fairly common practice). The post is at SCOTUSblog. Neither you nor Robert has to agree with Goldstein, of course, but it seems to me that the evidentiary burden is pretty high at this point.

The focus should be on the nomination, not the nominee--on Obama, not Sotomayor. The Bush nomination of Harriet Miers marked the onset of his second-term decline. Obama wants to portray his administration as a diversity of riches, a rich stew. Conservatives need to point out that it is stone soup.

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