"who hasn’t lived that life" seems pretty innocuous and certainly doesn't sound like game changing language, but as they say, context is everything.
It started a little over three weeks ago when Jeffery Rosen was taken out behind a shed and shot by Glenn Greenwald for a character assassination hit piece on appellate judge Sonia Sotomayor, who at the time was on the short list but not actually at the top of said list. William Kristol, who can be said to reliably represent the current thinking of the hard right, had settled on Michigan Governor Jennifer Granholm, apparently because President Obama said the word "practical" seven times in a single interview.
That's roughly representative of conservative intellectualism in America now. What explanation is there for the current GOP obsession over what Sotomayor eats and how that makes her unfit to be a Supreme Court justice, other than sheer stupidity?
In the first few days after the President announced his nomination, there was cautious defiance from the right with promises to carefully examine her judicial record and withholding final judgment until after her confirmation hearings, but that didn't last (and I have yet to hear conservatives talk about her judicial record). "Fat boy" Rush Limbaugh (Ronald Reagan Jr.'s words after Limbaugh launched a sexist, misogynic attack on the Speaker of the House -- not mine) just out and called Sotomayor a racist on his radio program, and Newt Gingrich tweeted as much: "New racism is no better than old racism. A white man racist nominee would be forced to withdraw. Latina woman racist should also withdraw"
The caveman-like phrasing is oddly appropriate, although such a statement is plainly ridiculous after Republicans placed Jeff Sessions in the top spot on the Senate committee that will question Sotomayor, since Sessions himself was rejected for the bench under a cloud of...wait for it....racist behavior, working as a prosecutor in Alabama. Thomas Figures, a former assistant U.S. Attorney, testified in 1981 that Sessions "was heard by several colleagues commenting that he 'used to think they [the KKK] were OK' until he found out some of them were 'pot smokers.'" This is the man that the GOP has placed their power and faith in on the Judiciary Committee to question a woman that the Republican establishment is now calling racist.
Pot, meet kettle.
These racist attacks have culminated in an out-of-context statement made by Sotomayor nearly eight years ago, where she said "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", only it's the magic five words that were left off that sentence that reveal the racism of the right to its fullest extent: "who hasn’t lived that life." Justice Ruth Bader Ginsburg has made similar statements about the value of having a woman on the court. In a case involving a 13-year-old girl that was strip searched in an Arizona school, Ginsburg said that the male justices "have never been a 13-year-old girl", in a case weighing how far schools can go to get drugs out of our schools. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."
As Ginsburg put it, the now elder male justices might think back to their experiences as 13-year-olds, but only as males, which is an entirely different experience than that of girls. Understanding the emotional context of a given situation is critical to making the right decision when the law isn't entirely clear, and men simply see and experience the world differently than women do. This is essentially what judge Sotomayor was saying in 2001, only she was talking about race and cultural heritage, not gender.
If the importance of perspective is rejected, then what Republicans are saying is that only white men aren't racist or sexist, and that nobody else can do the job.
So if, as Newt Gingrich put it, "white man racist nominee would be forced to withdraw", why didn't Jeff Sessions withdraw in 1986? And if he's not fit for a judgeship by Gingrich's terms, why hasn't he resigned from the U.S. Senate?
Rosen's hit piece enabled the blatant Republican racism to come out of the closet, but it did far more damage than that. A lot of this nonsense can be traced directly back to his story which was turned into a talking point memo for the right within hours of publication. Greenwald tagged three stories on National Review that picked up on the "Sotomayor is dumb" meme: "I'm sure Mark H. is right about Sotomayor's being dumb and obnoxious, just as Derb is right about her being female and Hispanic is all the [sic] matters."
These are conservatives who echoed Rosen's smears without having read any of Sotomaroy's opinions (and probably wouldn't understand them even if they had) and now those ad hominem attacks are being repeated in the right-wing echo chamber.
Lest we not forget that Samuel Alito said during his confirmation hearing that his own race, gender, and ethnic background colors his deliberations and that Republicans had absolutely no problem with it when it was a conservative, male ideologue saying it.
Even Ann Coulter's argument that liberals and Democrats are being selectively concerned over race because they rejected Bush nominee Miguel Estrada is built on dishonest comparisons. While Republicans compare Harriet Miers to judge Sotomayor -- whose only commonality that I could find is that they are both women, making the argument predictably sexist -- it becomes immediately obvious that Miers and Estrada are actually the apples-and-apples comparison that we ought to be having.
Ignoring for now the fact that conservatives disapproved of Miers as much, if not more, than liberals did, Miers was rejected for the bench because she didn't appear qualified for the job. As a law student she did not distinguish herself from her class in any way, and never once served as a judge at any level either for a state or the federal judiciary. Miguel Estrada compares very favorably to the "not qualified" crowd, again never having served as a judge in any capacity whatsoever.
While Estrada was nominated for an appellate position and not the Supreme Court as was Miers , such a lofty position hardly seems befitting of such an unaccomplished attorney. There was also the refusal of the Office of the Solicitor General to release any of Estrada's writings while having worked there, which alone ought to disqualify anyone from the bench. It should also be noted that the filibuster of Estrada was made possible by several Republican Senators that joined Democrats in opposing cloture. A filibuster by the Democratic minority would not have been possible without conservative help.
Sotomayor, in stark contrast, was nominated to the district court by Republican President George H. W. Bush in 1991 where she served for five years at the U.S. District Court for the Southern District of New York. Republican obstructionism actually began in 1997 when she was nominated to fill a vacant appellate seat by President William Jefferson Clinton. Although her nomination was "approved overwhelmingly by the Senate Judiciary Committee", Republicans embroiled her in "tortured judicial politics of the Senate" and said "they did not want to consider the nomination because elevating Sotomayor to the Appeals Court would enhance her prospects of being appointed to the Supreme Court". Her nomination was held up by an anonymous hold -- presumably a Republican -- for over a year. According to Senator Patrick Leahy, "of the 10 judicial nominees whose nominations have been pending the longest before the Senate, eight are women and racial or ethnic minority candidates."
This isn't the first time Sotomayor has been held up by racist and sexist Republicans.
Sotomayor was eventually confirmed by super majority of the Senate, 67-29, hardly the result one would expect from a controversial, unqualified, stupid, and racist nominee. 25 Republicans voted to confirm Sotomayor, including at least eight still serving today. If you include all the Senators still serving today that voted in 1998, the tally was 35-11 in favor if seating her.
On the matter of reversals, Sotomayor has had 60% of her opinions reversed by the Supreme Court. A couple of notes here: first, that 60% figure only comes from five opinions written by Sotomayor that have been considered by the court -- 2 affirmed, 3 reversed. As Nate Silver noted, that's actually better than the 75% rate at which most cases are reversed by the Supreme Court. And it doesn't speak at all to the opinions written by Sotomayor that were de facto affirmed by way of the court refusing to hear appeals, which happens a hell of a lot more often than not (we're talking like a 9:1 ratio that appeals are simply not heard at all, there-by pseudo-affirming them.)
But these things are as much about the soundness of the ruling as it is about the case law at hand. When an appeals court heard Lawrence v. Texas, for example -- the case that eventually threw out all the laws making homosexual sodomy illegal, but not straight sodomy -- the appellate court was bound by prior Supreme Court precedent that allowed such discrimination to happen, and they (arguably) correctly respected that precedent and affirmed the lower court rulings. The Supreme Court then took another look at the issue and overturned that ruling, and voided their own previous precedent in the process. Even though the appellate court was reversed, they did not act wrongly in that case, strictly speaking.
Without knowing the exact circumstances of all five cases in question, it's impossible to say that a 60% reversal rate is a good thing, or a bad thing.
Silver did do the right thing however and looked at all of Sotomayor's opinions (or rather SCOTUSBLOG did), and they/he found that out of 150 opinions written by Sotomayor, only 5 were reviewed by the Supreme Court (meaning 145 were affirmed either by not having the ruling challenged, or by the court refusing to hear the challenge), placing her true reversal rate at closer to 2%.
By that measure, Sotomayor is an extremely experienced, respected, and effective judge.
The only racists here appear to be the white man party (e.g. the GOP). Republicans have not elected a black person to the Senate in over eight years and have very few Latino Congressmen or Congresswomen.
Make no mistake, these race-based attacks on judge Sotomayor are racist and sexist, and coming from the GOP, really no surprise at all.
**The text of this article is Copyright © 2009 Paul William Tenny. All rights reserved. This work is licensed under a Creative Commons Attribution-Share Alike 3.0 United States License. Attribution by: full name and original URL. :: You can follow me on Twitter.