Yesterday in my Morning Maybe diary, I quoted from Talking Points Memo on Frank Ricci, about his history of filing lawsuit--"Ricci was for 'special rights' before he was against them," I wrote, referring to the fact that he was hired in the first place only after he sued to take the place of someone who scored better than him. Why? Because he was dyslexic.
And this poor sideswitching professional "victim" is the GOP's silver buller witness against Sonia Sotomayor?
But that was only part of the story, as Dahlia Lithwick points out at Slate. Ricci's sued his employers on other occassions as well. Heck, one might even say he had a penchant for frivilous lawsuits, that is, if he was a woman, or a Puerto Rican....
Fewer than 20 percent of federal appellate judges are female, but of the appellate judges called a "bully" or accused of similar words in the AFJ (outburst, intemperate, temperamental, discourteous, or unpleasant), 40 percent (4 of 10) were women. In sum, female judges are twice as likely as male judges to draw criticism for outspokenness and aggression. (It is theoretically possible, of course, that twice as many female judges as male judges actually are outspoken and aggressive, but there is little reason to think that, and my anecdotal experience is to the contrary - that male judges are more likely to be aggressive, whether in proper or improper ways.)
NOTE: I wrote this diary Friday evening. After finishing it, I discovered that Newt Gingrich had gone all-in with full-throttle nutjob email attack on Sotomayor, all built upon the egregious mis-representation dealt with below. Rather than re-write this diary, I will follow up with a separate one dealing in detail with Newt's demented attack email.
The Ed Show started off Friday by calling it "a big mistake" that Obama was apologizing for one sentence by Sonia Sotomayor taken out of context from a 2001 speech, A Latina Judge's Voice. And Ed was absolutely right. Taken out of context, it can be used against her, and so some response could certainly be called for. But (1) there's all the difference in the world between an apology and clarification, and (2) as Ed pointed out, it should have been matched with harsh words for those who've been demonizing her--or, better yet, more subtly, praise for John Cornyn for repudiating Gingrich and Limbaugh for their demonizing attacks.
Before saying anything else, we need to be clear that this is the best attack point they have. And what is it? One sentence--discussing race and sex discrimination cases--that's part of a several paragraphs long argument that can't be fully understood in isolation. Which is why we will go through her argument on the flip. And yet, even though it can't be fully understood when quoted in isolation, it clearly is not what Gingrich, for example, is making it out to be.
Here is the sentence:
"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."
Remember, she's discussing race & gender cases, and she is expressing the hope that a wise Latina woman would reach a better conclusion in those sorts of cases, by virtue of her experiences. She is not expressing certainty, and she's not talking about all cases, but only about those concerning race and gender discrimination. Now here's the Wall Street Journal reporting on what Gingrich turned that into (immediately following their quote of the actual sentence):
"Imagine a judicial nominee said 'my experience as a white man makes me better than a Latina woman.' Wouldn't they have to withdraw?" asked former House Speaker Newt Gingrich on his Web site. "New racism is no better than old racism."
"Makes me better than"? Where did Sotomayor say that? It's obvious she did not.
And for anyone who's paid attention to Gingrich over the years, this sort of sloppy, self-serving misreading of others is just par for the course. He's an incredibly bad listener. But to really understand how far off the mark he is (and he's not the only one), we need to read Sotomayor's remarks in the context of at least several paragraphs, where she lays out different aspects of her thinking....
The near-simultaneous announcements of Sonia Sotomayor's nomination to the Supreme Court, and the California Supreme Court's upholding of Proposition 8 serve to starkly underscore the significance of hegemonic warfare in the judicial branch of government. The swift eruption of rightwing talking points attacking Sotomayor was entirely expected, and quite predictable, as seen in the examples cited by Chris. But the hegemonic story behind the Prop 8 decision is a little more obscure.
As we've just heard that Judge Sonia Sotomayor has been appointed to the Supreme Court, I am reminded of just how important the "counter-majoritarian branch" really is. With the looming Prop 8 decision expected in just a few hours at 10AM, it can never be said that policy does not emerge from the judiciary. Not matter how the court decides on Prop 8, the California Supreme Court is clearly making policy when it determines whether I am married or not. There is no such thing as merely being an arbitrator, there are always shades of gray, and the requirement for a judge to apply their judgment. After all, it is nearly impossible for one to stand in judgment without, um, judgment....
But here in California, policy is made all of the time in the courts, primarily because our elected leaders have been hamstrung by a disastrous structure of government but also by years of failed leadership on issues like the prison system. Years of the failed ToughOnCrimeTM policy and the unwillingness to put policy over politics left us with an absolute mess. Judge Thelton Henderson, a prominent NorCal district court judge, has consistently made more policy for our state prison system than the elected leaders....
The courts are there to protect those who need protection. The courts are there to block the tyranny of the majority. Hopefully we'll see that today.
Of course, we didn't see that. What we saw, instead, was a form of stealth activism--judges actively destroying California's constitutional distinction between a constitutional amendment (which is subject to majority rule) and a constitutional revision (which is not). That activism, in turn, descends directly from 1986 corporate-funded judicial recall election, in which 3 Jerry Brown appointees were voted out of office under the banner of rolling back judicial activism against the death penalty. After they were ousted, California swiftly reinstated executions... six years later, in 1992
