Sotomayor's hapless critics

I'm not yet ready to say that Sonia Sotomayor is teflon-coated, but her critics from the fringe right are really trying hard and nothing is quite sticking. They leaped on a statement she made in a panel on constitutional law some years ago, when she said that the appeals courts are where policy is made. She immediately clarified that she knew they didn't "make law." And she laughingly said, in what was apparently a friendly setting, that she shouldn't have said that with the tape running.

Of course, critics have leaped all over that, branding her as "an activist judge." Now various legal scholars have commented that, of course, policy is made by appeals courts. By making decisions that clarify laws that aren't clear in their application, they "make policy" that over time becomes accepted as precedent. And the appeals court level is where this mostly happens. Only a very small number of cases ever make it to the Supreme Court.

So many legal scholars are defending her saying that. Now we have a quote from Justice Scalia himself, made in the past:

"This complete separation of the judiciary from the enterprise of "representative government" might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well.":
Justice Antonin Scalia

"In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed."
Justice Antonin Scalia

And then there's the big flap about whether her Latina heritage and her "compelling life story" make a difference in how she decides cases, and whether it should. Of course her critics say it shouldn't, that justice is blind. And they're yelling about bias, deciding based on feelings, blah blah blah.

So here's another conservative Supreme Court Justice from his confirmation hearings:

"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."
Justice Samuel Alito

And then there's the furor about Obama saying he wanted someone with empathy. The snarky critics from the right have been having a field day, either through ignorance or design, misusing the word to mean sympathy or feelings, rather than a capacity for understanding the other person's point of view. So who has empathy?

"He is a delightful and warm, intelligent person *who has great empathy*"
President George H. W. Bush about nominee Clarence Thomas

OK. Enough said. They've got to come up with better than this, although when it gets amplified by the Rush machine and the clowns, the base gets riled.

But it's looking like the cooler heads are thinking they'd better cool down. They have a real problem in criticizing Sotomayor without good evidence: otherwise they'll be seen as being opposed to women and to Hispanics.

Ralph