Editore"s Note
Tilting at Windmills

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June 9, 2009

AN 'INCREMENTALIST' WHO EMBODIES 'JUDICIAL MINIMALISM'.... Conservatives evaluating Sonia Sotomayor's qualifications for the Supreme Court apparently believe the key areas of evaluation include everything except her rulings and years on the federal bench. The New York Times' David Brooks doesn't find the right's caricature of the judge to be especially compelling.

She is quite liberal. But there's little evidence that she is motivated by racialist thinking or an activist attitude.

Tom Goldstein of Scotusblog conducted a much-cited study of the 96 race-related cases that have come before her. Like almost all judges, she has rejected a vast majority of the claims of racial discrimination that came to her. She dissented from her colleagues in only four of those cases. And in only one of them did she find racial discrimination where they did not. Even with what she calls her "Latina soul," she saw almost every case pretty much as they did.

When you read her opinions, race and gender are invisible. I'm obviously not qualified to judge the legal quality of her opinions. But when you read the documents merely as examples of persuasive writing, you find that they are almost entirely impersonal and deracinated. [...]

To my eye, they are the products of a clear and honest if unimaginative mind. She sticks close to precedent and the details of a case. There's no personal flavor (in the boring parts one wishes there were). There's no evidence of a grand ideological style or even much intellectual ambition. If you had to pick a word to describe them, it would be "restraint."

Before endorsing Sotomayor's confirmation, Brooks argued that the judge is "a liberal incrementalist" whose "careful opinions embody the sort of judicial minimalism that Obama and his aide Cass Sunstein admire most." Far-right nonsense notwithstanding, Brooks added that Sotomayor has "chosen to submit herself to the discipline of the law, and she has not abused its institutions."

What effect will this have on conservative attacks, and the news outlets that treat their talking points as credible arguments? Probably none, but it's nice to see the column anyway.

Steve Benen 11:10 AM Permalink | Trackbacks | Comments (16)

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Judging from recent experience, the only effect this will have on conservative attacks will be to turn them on Brooks as a traitor. Thou must not disagree with Rush.

Posted by: Shalimar on June 9, 2009 at 11:06 AM | PERMALINK

If Brooks knows anything it is an "unimaginative mind." He's lived with one his entire life.

Posted by: Henk on June 9, 2009 at 11:06 AM | PERMALINK

Quite clearly, Sotomayor's opinions are all part of a carefully crafted plot going back almost 50 years to install Barack Hussein Obama as president. The same people who arranged to have his birth announcement planted in the Hawaii newspaper when we know he was really born in Indonesia--those same people are the ones who have been whispering in Sotomayor's ear since her days at Princeton, telling her how to write opinions that will mask here REAL self.

Obviously, George Soros is behind it all. Just ask Rush!

Posted by: Domage on June 9, 2009 at 11:11 AM | PERMALINK

There is a certain decibel level in the political universe that needs to be maintained, lest attentions wander to More Important Stuff.

One of the few 'perks' of the POP (Party Outta Power) is they, by default, -because they have nothing else to do- are in charge of that decibel level.

Reason and rational have no bearing on the level. As the bard said, 'it is full of sound and fury, signifying nothing'. . .

Posted by: DAY on June 9, 2009 at 11:15 AM | PERMALINK

Oh David Brooks, what a man of two faces he is. Somehow able to correctly deduce that her decisions indicate no pattern of unequal or biased treatment based on race, but somehow able to conclude with no evidence that "she is quite liberal". Oh Davy!

Posted by: onceler on June 9, 2009 at 11:23 AM | PERMALINK

Bobo completes the rounding out of the repubs' circular firing squad at Sotomayor quite nicely...

Posted by: neill on June 9, 2009 at 11:25 AM | PERMALINK

Just something to consider is the racist attack and how existing interpretations do not make "Latina" a race, but rather an ethnicity. The Census Bureau has come to this conclusion, along with the EEOC. The EEOC has defined 5 categories of race: "Note that forms used for collecting federal data on race and ethnicity in the workforce use five racial categories: American Indian or Alaska Native; Asian; Black or African American; Native Hawaiian or Other Pacific Islander; and White; and one ethnicity category, Hispanic or Latino."



Posted by: Dave on June 9, 2009 at 11:58 AM | PERMALINK

is "racialist" the new wingnut buzzword?

Posted by: mellowjohn on June 9, 2009 at 12:17 PM | PERMALINK

It's really crazy to see just how scared "some" white people are so afraid of letting a non-white person have some power. (I say "some" since I am a white guy - and a lawyer - and I think Sotomayor is a great choice)

So many on the right are so convinced that racism and discrimination either don't happen or aren't that bad. But they are petrified that some white person somewhere might have to experience even a second of discrimination.

Mind you, there is no evidence that Sotomayor would engage in any type of discriminatory activity, but right wingers seem to give in to their fears rather easily.


Posted by: Homer on June 9, 2009 at 12:21 PM | PERMALINK

My guess is that Brooks comments will have no effect in right wing circles because their attacks are not about Sotomayor specificially. Let's face it, no one really knows who she is, or cares. For the most part, the judge is just a proxy, a stand in, for the right wing's attempt to energize its base, help with fundraising and recruitment, throw mud at liberals and their activist judges, and gin up white male rage and resentment due to perceived minority slights. It is good to see a conservative like Brooks actually doing his homework and giving Sotomayor's appointment some real thought as to what it says about Obama's view of the law and the Court's role in it. But outside of conservative intellectual circles, Brook's arguments are likely to be greated with a great big shrug.

Posted by: Ted Frier on June 9, 2009 at 1:07 PM | PERMALINK

@ mhr,

David Brooks may be wrong 90% of the time, but he's not INSANE. Can you name any other conservative columnist that meets that threshold?

Reasonable conservative opinions are quoted all the time in this and other liberal/progressive blogs. The reason you don't see many of them is due to the fact that they're aren't many available to quote.

What you call flame-throwing is merely pointing out the hypocrisy and sheer absurdity of most conservative commentary today. Do you care to defend the kind of baseless accusations that spew daily from the mouths and pens of conservative columnists? Does the fact that David Brooks is capable of acknowledging the obvious make him some sort of intellectual giant? I'm afraid you have it backwards.

Oh and BTW, I can name all kinds of liberal columnists who write rationally and back up their arguments with facts. Steve Benen, Hilzoy, Glenn Greenwald, Andrew Leonard, Digby, Paul Krugman, Robert Reich all provide coherent and fact-based analysis in debunking the endless stream of errors flowing from conservative mouths. Every argument they make has multiple links to supporting source material. You typically don't find that on the other side.

If you have evidence of conservative commentary that is intellectually developed, please provide a direct link. Otherwise, you're just full of shit (oh, I'm sorry, is that juvenile?).

Sorry, some things just have to be said.

Posted by: bdop4 on June 9, 2009 at 1:16 PM | PERMALINK

I for one am not happy to see Brooks pepper his column with condescending remarks about her lack of "intellectual ambition."

Posted by: modaca on June 9, 2009 at 1:29 PM | PERMALINK

Homer, as a fellow attorney, I concur with your post. As for the wingers, its merely self-projection/protection. Payback could be a bitch.

Posted by: Scott F. on June 9, 2009 at 1:33 PM | PERMALINK

Robert Bork had "grand ideological style" and "intellectual ambition." that and his persistent argumentation during his confirmation hearing is what disqualified him from the Supreme Court.

The Democrats on the Judiciary Committee would do well, I think, to follow Brooks' (and even some other coservatives', not to mention liberals') focus on Sotomayor's decisions (after a few perfunctory questions about the "wise Latina" language), and challenge the Republican opponents to find any judicial record to object to. She can follow Alito's example and make short answers that are narrowly focused.

She's a fine nominee, and her confirmation will be a shoe-in.

Some ironies:

The words Latina and Latino celebrate the Roman conquest of the Iberian peninsula.

Geneologically, the people of the Iberian peninsula and Puerto Rico are almost purely Caucasian, most of the native population in Puerto Rico having been killed by combat and disease before many "meztisos" could be bred.

Most of Sotomayor's job has consisted of, and will consist of, deciding which White Man's writings to agree with.

And Brooks nails the conservatives by using the word "restraint". It's what conservatives always claim to want in jurisprudence.

Posted by: MatthewRMarler on June 9, 2009 at 1:50 PM | PERMALINK

Sorry, but I am skeptical of anything written by David fucking Brooks. His endorsement alone is enough for me to want to reject Sontamayor except his only concern really has nothing to do with her but with giving these republican goobers a way to keep quiet their unfounded prejudice.

Posted by: bjobotts on June 9, 2009 at 4:06 PM | PERMALINK

being yet another lawyer on here, i completely agree with Brooks' analysis of Sotomayor's record.

which is why i would have rather had a more aggressively progressive nominee.

i understand those who say we shouldn't want a "liberal Scalia," but I also think it is a wasted appointment to name someone likely to be a "liberal Anthony Kennedy" - someone always in the middle, straddling the line, incrememntalist in walking back (if at all) the Rehnquist/Roberts courts.

Posted by: zeitgeist on June 9, 2009 at 4:28 PM | PERMALINK



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