The One Question Not Asked about Sonia Sotomayor
I've officially retired from listening to the debate on Sonia Sotomayor. I have my limits. It's not that I can't take the lunacy. If this was merely lunacy, I'd be fine with it. But as a friend of mine described it, this is hysteria. This has reached the depth of soul crushing, saved only by the knowledge that Ms. Sotomayor will be confirmed for the Supreme Court, and easily.
The problem here is not substance, but that when you engage someone in a debate, it legitimizes that debate. Whatever this debate is, it is not legitimate. This debate on Sonia Sotomayor is to legitimacy what Pinky and the Brain are to the war on terrorism.
Problematic, too, is that for all the good-intentions of debate, one important question has yet to be asked. And so without it, the debate rages, hysterically.
Anyone trying to debate somebody about Sonia Sotomayor, however, is fighting a losing battle - because they believe it is a real debate, where the other side could be convinced by logic - or facts, or anything.
That's the flaw.
A few years ago, a friend was auditioning for a talk show on a local station. A mutual acquaintance thought he'd have some fun. He called up, got on the air with a fake voice and began arguing with every single point the host would make. Not just argue, but throw out fake statistics and imaginary research. The aspiring host would debate back, but it was hopeless - because everything was made up. There was literally no winning the debate. One of the two people wasn't actually debating, but merely being contradictory for the sake of being contradictory. Listening was halfway between hilarious and too painful. My friend hosting probably gained points with the station for going toe-to-toe so impressively. Ultimately, someone else got the job, but I learned a valuable lesson. You can't win a debate against someone who is not debating.
It is the same lesson today, and why I now turn off the call-in radio shows and the TV broadcasting having Sotomayor Debates. "Too painful" has won out, because these aren't call-in pranks. Amid all the attempt to debate in good faith, and all the questions being asked...the one question that should be asked isn't.
And still they debate on. Hopelessly - because of the two-word gambit. "Yes, but..."
We hear the Sotomayor Defense explain that other judges have said the exact same thing. "Yes, but..." is always the response.
We hear the the Sotomayor Defense explain her full, thoughtful quote that rarely gets heard. "Yes, but..." comes the answer.
We hear the the Sotomayor Defense explain what the specific topic of the conference was, that she was required to speak on. The same reply always follows. "Yes, but..."
Yes, but... Yes, but... Yes, but... Every time. Because it doesn't matter what reality is explained, the person arguing Doesn't Want to Hear It. Doesn't Care. If the topic at hand was "What is two plus two?", and Albert Einstein himself returned to earth and explained why the answer was "four," the reply would be - "Yes, but..."
The problem with this Far Right hysteria is not substance, but what it says about the Far Right - and about their corroding the American discourse out of emptiness and fear.
There are many reasons why those filling the national consciousness against Sonia Sotomayor are so ripped up inside. Some likely hate Barack Obama because he's not Republican. Some hate President Obama because he's black. Some hate Sonia Sotomayor because she's a woman. Some because she's a Latina. Some are well-meaning, but terrified of life today because George Bush and Dick Cheney made them terrified to try and win elections with enabling support of the GOP. None of them are acting because they actually want to hear what anyone else has to say.
To be clear, there are a small handful of people reasonably discussing Judge Sotomayor. I'm not referring to them above. Those above are flailing for a life preserver.
And that leads to the one question that has not been asked.
As I said, you can't debate those who aren't debating. All you can do is ask them questions, to get such people to explain themselves and ultimately reveal to others the depth of their hysteria.
And at the heart of that is the one question that hasn't been asked.
When I hear a discussion with someone ranting how Sonia Sotomayor said something which shows that she is a racist bigot of the prejudiced discriminatory Hispanic KKK...I want to hear them asked one question:
Can you give one example of any court opinion Judge Sonia Sotomayor has herself personally written, signed and delivered in her 17 years on the federal bench, among over 3,000 rulings, that is "racist"?
Show your work.
"Yes, but..." is not an answer. Just respond to that simple question.
And until you can answer that question, leave the table because life is much too important and you're taking up the seats of the adults.
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Part of the problem is that almost all conservatives are totally opposed to Civil Rights Acts and the Voting Rights Act, so they consider any judge who does not ignore these laws to be a racist. A great example is Judge Sotomayor's minority opinion in Hayden v. Pataki in which prisoners sued under the Voting Rights Act for the right to vote. She wrote:
"It is plain to anyone reading the Voting Rights Act that it applies to all “voting qualificat
"The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. ... [E]ven if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it."
Despite their rhetoric, conservatives want judges who ignore the law and make political decisions.
"Can you give one example of any court opinion Judge Sonia Sotomayor has herself personally written, signed and delivered in her 17 years on the federal bench, among over 3,000 rulings, that is "racist"?"
You obviously didn't look at the ricci case. White firefighters who scored highest on a test for promotion were told after the fact they weren't being promoted because no blacks had scored high enough. The test had been designed by a company that specializes in making tests that are non discriminatory. Sotomayor threw out their lawsuit on appeal.
From title vii.
"(l) Prohibition of discriminatory use of test scores
It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin. "
Apparently you are only protected against racist employment practices if you are not white.
Interesting. Ever read "Pappas v. Giuliani"? She's the dissenting voice in this case, *protecting a white bigot's freedom of expression*. That doesn't sound like a "reverse racist" opinion.
See Robert J. Elisberg's Profile
You are incorrect, on the facts and the reading. The question was very specific – it was to name one ruling that Judge Sotomayor has “herself personally written, signed and delivered” that is “racist.” The Ricci decision came from a three-person panel, and it was unsigned. No one has any idea what Ms. Sotomayor’s personal judicial opinion on the case is. For all we know, it may have been completely supportive of the plaintiffs, but turned on a technicality. The only thing we know is that the three-person panel found no legal basis to overturn a lower court.
Further, upholding a lower-court decision on race is not even close to the definition of “racist.” A decision can be racial without being “racist.” Or wrong without being “racist.” Even the losing side didn’t consider it “racist.” They just considered it wrong.
Demonstrating actual racism, rather than incorrect legal interpretation – especially in an unsigned three person decision -- is the burden of proof.
Finally, I am going to make an assumption that no one here is a Federal judge. Or likely even a lawyer. So, arguing the law, and the facts of a case – especially in one pithy paragraph – is meaningless. It’s easy to argue The Law when one hasn’t done the six months of diligence…and when no one is arguing back.
Yes, but…
Despite the excellent comment from Robert J. Elisberg, I am going to argue law in one pithy paragraph.
New Haven did not do any of the things prohibited by the provision of the law quoted, which was added by Congress specifically to protect white applicants. What they did was decide not to promote anyone. Not using the test scores cannot be a discriminatory use of test scores and the plaintiffs did not argue that it was.
and let me add:
Beyond the 'de facto' test of discrimination, there is a second test, equally valid and important. If there is an 'effect' of discrimination in what you do that causes there to be a disaffected or disenfranchised group, it is equally discriminatory. For example, saying an employee must be able to lift 100lbs may be a job requirement and may also adversely limit female applicants. Jobs for any disabled may be effortless for able-bodied. Where does it fall? If NO ONE other than white males passed the test, it's at least suspect. Does that test accurately reflect job-required skills or is it an SAT? SATs have been shown to be culturally biased.
"You can't win a debate against someone who is not debating."
Excellent point.
Sure, I can answer your one question, and it;s the one issue which could sink her nomination.
Her order in Ricci vs. Stephano is racist to the extreme.
Her 134-word summary order in Ricci vs. DeStefano, which upheld the decision of New Haven, Conn., to throw out the promotion test it had given city firefighters when no African Americans and two Hispanics qualified for advancement.
The city of New Haven paid $100,000 to have a diversity firm prepare an unbiased test, but when the results of that test fell on the side of white firefighters she sided with two Hispanics because of their race.
Ask a tougher question next time, please -- after the Supreme Court reverses her decision.
And by the way, I think she's been reversed something like 60% of the time by the court she wants to join.
Please ask "how come"?
She was merely upholding a lower court's opinion. How is that "racist to the extreme"? 60% reversal rate, not even close, do some research, just like the article asks.
Here is 538's take on the 60 percent thing, http://www
Its really 3 out of 150, the 60 percent number comes from 3 out of the 5 that the Supreme court choose to look out. Those 3 though were a 5-4 split, and the person who she is replacing sided with her.
meanwhile that 60% is about the norm for supreme court reviews of appellate decisions. I believe Alito's percentage was also about 60%.
i've read that it's about 75% of cases they overturn..
Actually, based on the same criteria, Alito's decisions have been overturned 100% of the time...
Sotomayor has issued 380 major opinions. 375 of those opinions were deemed not worthy of review. The Supreme Court reviewed 5 of those 380 opinions. Of those 5 opinions, 3 were overturned.
The Supreme Court overturns about 75% of the opinions they review.
Based on that fact, Sotomayors 60% reversal rate is below the norm.
Yes but...
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