There are just nine votes on the court, and each time they cast those votes they’re setting the rules that all of us need to live under for now. Sotomayor knows that.
Sure, Justice Sotomayor showed class, by extending a gesture of professional respect to a colleague. Somehow though, Justice Kavanaugh owes the whole nation an apology for enabling the stops that bear his name. If he has any class at all, maybe one day we might hear something from him.
Justice Sotomayor is a "class act", but her original call-out of her colleague was way too nice. As a retired criminal law practitioner, I cannot for the life of me, see how a "Kavanaugh Stop" is constitutional. No white person has to worry about the ramifications of such a stop, e.g. arrest and detention in a jail cell, loss of your job, the humiliation, etc. However, if you're a person of color with an accent, thanks to the former frat-boy, you're now fair game. Watch your back.
Couldn’t agree more. I think part of being a liberal Justice in this political climate is understanding that sometimes you have to take one off the chin for the greater good. It takes a ton of grace & foresight to do what she did.
You raise good points. Perhaps I (and Chris, by extension) are looking for a silver lining where one doesn’t exist. And if so, we repeat the mistakes of liberal judges & politicians through the ages. But I also view the apology as appeasing Roberts’ (specious & absurd) desire to paint the Court as a collegial, non-partisan body. Plus, Kavanaugh has seemed to signal some desire to move on the Vazquez 4A issue (FN 4 of Trump v. Illinois). Of course, as you rightly note, there’s no guarantee that any of this moves the needle at all — but I can’t fault her for trying. Appreciate your thoughtful pushback.
Nah, that's the problem with liberal jurists and politicians. They'd rather take one on the chin in the name of grace and alleged "foresight," but wind up just taking it on the chin over, and over, and over, and over, and over with no end in sight, while the GOP and their conservative jurists trample our rights, political and judicial norms, and the laws and rules that make civil society function properly.
I think your perspective is totally valid. I agree w you that far too many liberal politicians fold and accept things without much of a fight, if any. But in my opinion, this isn’t as simple as ceding ground to conservatives as you suggest. Sotomayor & the other liberals on SCOTUS are in harm mitigation mode. They need to count to five in several very important cases pending this term. Kavanaugh is also a man who desperately wants to be liked & who seems easily swayed by interpersonal interactions. Time will tell whether this was the right tactic, but I don’t think it’s as clean of a comparison as (for example) democrats in Congress folding on immigration, Gaza, etc.
I disagree. I simply don't think that by apologizing to Kavanaugh, it will be the difference between him joining the liberals on a major issue versus not. Especially Kavanaugh. If it was the Chief or ACB or Gorsuch I might feel a bit differently. But Kavanaugh had the 4th highest rate of voting bloc alignment in contested, split cases, behind Alito, Sotomayor, and Thomas. Meaning when push comes to shove, he's almost as ideologically rigid as Alito and Thomas. Criticizing him and then apologizing won't soften him up. At all.
When you work in a small group, getting along with your colleagues is important. When you work in a small group that makes decisions collectively, and you want to have the credibility to persuade colleagues who may not otherwise agree with you, getting along is more than important. It's critical. Justice Sotomayor's remarks were improper, and her apology was not only necessary but gracious. I remain a fan.
I don’t think it was improper, and I doubt she regrets the statement. She just found it necessary to apologize for the sake of comity. Now, we know how she feels about it.
I’ve read where conservative justices made similar critical remarks of liberal justices in the past, and in those cases everybody just lets it slide. But, when a conservative justice has their feefees hurt, then an apology is warranted.
I don’t think they were improper at all. She said what a lot of us think of anyone in Congress and upwards. Just probably something she should have held onto till she retired and didn’t have to work with him anymore. 🤣
This is a patently absurd take. This isn't like working at a small business of 9 people where you gotta get along. These people are making life and death decisions that have massive impacts on the lives of 350 million people--and really more like billions of people when you factor in foreign policy impacts--they need to get things right. "Getting along" isn't going to help the liberal wing win a single case. Period.
Couple of things about that. One, judges don't "win" or "lose" cases. They make decisions. Two, although one wouldn't know it from watching the news, few decisions are of the "liberal versus conservative" variety. In all kinds of other less well publicized cases, persuading colleagues matters. But you won't get very far if you have said publicly that you have no real respect for them because their life experiences are limited. And one last point: judicial decisions have credibility only to the extent courts have credibility, and it does not behoove a judge, whatever that judge may think privately, to express disrespect and lack of confidence in the judge's colleagues. I spent nearly 22 years as a trial judge, and I can tell you that I had colleagues about whom I had doubts, even a couple for whom I had little respect. But I never would have said that publicly. Never.
Your naivete is showing through. You clearly have some high and mighty view of yourself and your fellow jurists as somehow above politics. As a practicing attorney, that sense of self-important superiority complex is something I've grown to expect from jurists (themselves largely from backgrounds closer to Kavanaugh's than Sotomayor, or me, or my clients), a belief that just by virtue of being a jurist they're suddenly unbiased and above it all, when the reality could not be further from that self-perception. SCOTUS especially is no longer an institution that has a lick of independence from political realities. It is almost purely a political animal at this point, no different than Congress. 50 years of Federalist assaults on the judiciary have created that result. The sooner liberals realize this, and fight back accordingly, the better off we'll be as a society.
I'll ignore the name-calling, except to say that I don't believe after 22 years in practice and another 22 years on the bench anyone could fairly call me "naïve"! As for your experience, I can't speak to it, of course. I can only say that in my experience, only once did I even sense that a judge I appeared before was biased. Some judges are careless, some judges are discourteous to lawyers, and some judges, unfortunately, are simply unwilling to listen. But most judges, I've found, are trying their level best to be fair and make good decisions. Does that always happen? No. Do losing parties take issue with unfavorable decisions? Of course. And sometimes those losing parties ascribe unfavorable decisions to bias. That's just people being people. At least in my experience, though, your accusations of widespread bias and politically oriented decision-making are invalid.
She was right on in assessing the effect of Kavanaugh's stupid, tone deaf comment on that decision, and it isimportant to acknowledge how false his portrayal of those ICE stops is in real life. So i don't regret she said it. But we can never know for certain what another person's experience has been, so to imply that he knows no working class people is going too far, and is also a put down, though it may turn out to be quite true. So i find it appropriate that she apologized for that part of what she said, and give her great respect for doing it publicly, in order to restore harmonious relations--as far as we, the public, can see--on the Supreme Court.
"we can never know for certain what another person's experience has been" IMO, more importantly in the context of SCOTUS rulings it shouldn't matter. Neither the experiences of those ruling nor of those who will be affected by the ruling.
I have a lot of empathy for the working class, (I am one) immigrants, and all marginalized groups. I detest Kavanaugh as a human and his ruling, I agree with Sotomayor. HOWEVER, it is not the role of SCOTUS to even consider anyone's experience, their job is to interpret laws without bias and it is to be applied equally to all. I believe the "Kavanaugh stops" are unconstitutional and that's what SCOTUS needs to address, not how much it hurts whom. It is still wrong if rich people are arrested.
It’s nice that Soto apologized, but her critique of Kavanaugh is not far off the mark. Kavanaugh IS a product of an elite life. Among other things, he attended perhaps the most prestigious (certainly the most expensive) Catholic high school in the DC area, Georgetown Prep. The school, which also produced Gorsuch, has its own golf course. ‘Nuff said. So when Prep traveled into the inner city to play football or basketball against the other DC Jesuit high in DC, Gonzaga —a school located across the street from one of the worst open-air drug markets in the city, a school with a homeless shelter in the basement of the church on its campus— no surprise that the Gonzaga fans greeted Prep players and fans gleefully with signs and cheers that said, “Welcome to the Real World.”
Kavanaugh has now, through his invocation of legal theories that have systematically stripped away rights, through his creation of things like the Kavanaugh stop, gotten his revenge on places like the neighborhood around Gonzaga.
We now live in a “real world” of his and the other conservatives’ creation. It’s a world in which one person, the president, can pretty much do anything he wants, with next to no accountability. A world in which guns have almost as many rights as an unborn child, and more, certainly, than a pregnant woman. A world in which people with money can game elections with impunity, in which the distance between state and church is measured in millimeters. At most.
Yep, Soto has to work with the Kavanaughs at the SC. But she, and we, don’t have to accept that the SC majority has any more brilliant insight into what the constitution means than anyone else in their shoes. A “real world” isn’t made up by legal or any other minds. It’s lived in, acknowledged, reckoned with. And no justice’s opinion can overrule that fact. No matter how much he likes to think it can.
Kavanaugh the person deserves no such apology. The guy is a racist and a bigoted elitist with very few, if any, redeeming character traits. But if Sotomayor feels the need to manipulate the knuckle-dragger in service of a higher benefit, then so be it. This sort of thing happens all the time in the real world, and most people understand the situation. She's being the (much smarter) adult here.
A class act from a smart woman.
Yes, so very smart, isn't she.
Sure, Justice Sotomayor showed class, by extending a gesture of professional respect to a colleague. Somehow though, Justice Kavanaugh owes the whole nation an apology for enabling the stops that bear his name. If he has any class at all, maybe one day we might hear something from him.
I think he subsequently tried to walk back on the scope of his stops
Yes, a bit weakly, and to no effect.
He did, but in a footnote on an unrelated case so, even as dicta, it was essentially meaningless IMO.
And, he didn't even cite to his September opinion. I've written about that repeatedly — including in one of the pieces linked to in this piece.
Clearly, though, he has none.
We never will.
Sadly, decency and good manners seem to dwell only on the blue side.
Justice Sotomayor is a "class act", but her original call-out of her colleague was way too nice. As a retired criminal law practitioner, I cannot for the life of me, see how a "Kavanaugh Stop" is constitutional. No white person has to worry about the ramifications of such a stop, e.g. arrest and detention in a jail cell, loss of your job, the humiliation, etc. However, if you're a person of color with an accent, thanks to the former frat-boy, you're now fair game. Watch your back.
Couldn’t agree more. I think part of being a liberal Justice in this political climate is understanding that sometimes you have to take one off the chin for the greater good. It takes a ton of grace & foresight to do what she did.
Grace indeed—what a world that this must needs pointing out.
You raise good points. Perhaps I (and Chris, by extension) are looking for a silver lining where one doesn’t exist. And if so, we repeat the mistakes of liberal judges & politicians through the ages. But I also view the apology as appeasing Roberts’ (specious & absurd) desire to paint the Court as a collegial, non-partisan body. Plus, Kavanaugh has seemed to signal some desire to move on the Vazquez 4A issue (FN 4 of Trump v. Illinois). Of course, as you rightly note, there’s no guarantee that any of this moves the needle at all — but I can’t fault her for trying. Appreciate your thoughtful pushback.
Nah, that's the problem with liberal jurists and politicians. They'd rather take one on the chin in the name of grace and alleged "foresight," but wind up just taking it on the chin over, and over, and over, and over, and over with no end in sight, while the GOP and their conservative jurists trample our rights, political and judicial norms, and the laws and rules that make civil society function properly.
I think your perspective is totally valid. I agree w you that far too many liberal politicians fold and accept things without much of a fight, if any. But in my opinion, this isn’t as simple as ceding ground to conservatives as you suggest. Sotomayor & the other liberals on SCOTUS are in harm mitigation mode. They need to count to five in several very important cases pending this term. Kavanaugh is also a man who desperately wants to be liked & who seems easily swayed by interpersonal interactions. Time will tell whether this was the right tactic, but I don’t think it’s as clean of a comparison as (for example) democrats in Congress folding on immigration, Gaza, etc.
I disagree. I simply don't think that by apologizing to Kavanaugh, it will be the difference between him joining the liberals on a major issue versus not. Especially Kavanaugh. If it was the Chief or ACB or Gorsuch I might feel a bit differently. But Kavanaugh had the 4th highest rate of voting bloc alignment in contested, split cases, behind Alito, Sotomayor, and Thomas. Meaning when push comes to shove, he's almost as ideologically rigid as Alito and Thomas. Criticizing him and then apologizing won't soften him up. At all.
ETA source: https://legalytics.substack.com/p/measuring-the-justices-an-portrait
I’d say that both the original comment and the apology were appropriate. And might have a positive affect, maybe sooner than later.
When you work in a small group, getting along with your colleagues is important. When you work in a small group that makes decisions collectively, and you want to have the credibility to persuade colleagues who may not otherwise agree with you, getting along is more than important. It's critical. Justice Sotomayor's remarks were improper, and her apology was not only necessary but gracious. I remain a fan.
I don’t think it was improper, and I doubt she regrets the statement. She just found it necessary to apologize for the sake of comity. Now, we know how she feels about it.
I’ve read where conservative justices made similar critical remarks of liberal justices in the past, and in those cases everybody just lets it slide. But, when a conservative justice has their feefees hurt, then an apology is warranted.
I don’t think they were improper at all. She said what a lot of us think of anyone in Congress and upwards. Just probably something she should have held onto till she retired and didn’t have to work with him anymore. 🤣
This is a patently absurd take. This isn't like working at a small business of 9 people where you gotta get along. These people are making life and death decisions that have massive impacts on the lives of 350 million people--and really more like billions of people when you factor in foreign policy impacts--they need to get things right. "Getting along" isn't going to help the liberal wing win a single case. Period.
Couple of things about that. One, judges don't "win" or "lose" cases. They make decisions. Two, although one wouldn't know it from watching the news, few decisions are of the "liberal versus conservative" variety. In all kinds of other less well publicized cases, persuading colleagues matters. But you won't get very far if you have said publicly that you have no real respect for them because their life experiences are limited. And one last point: judicial decisions have credibility only to the extent courts have credibility, and it does not behoove a judge, whatever that judge may think privately, to express disrespect and lack of confidence in the judge's colleagues. I spent nearly 22 years as a trial judge, and I can tell you that I had colleagues about whom I had doubts, even a couple for whom I had little respect. But I never would have said that publicly. Never.
Your naivete is showing through. You clearly have some high and mighty view of yourself and your fellow jurists as somehow above politics. As a practicing attorney, that sense of self-important superiority complex is something I've grown to expect from jurists (themselves largely from backgrounds closer to Kavanaugh's than Sotomayor, or me, or my clients), a belief that just by virtue of being a jurist they're suddenly unbiased and above it all, when the reality could not be further from that self-perception. SCOTUS especially is no longer an institution that has a lick of independence from political realities. It is almost purely a political animal at this point, no different than Congress. 50 years of Federalist assaults on the judiciary have created that result. The sooner liberals realize this, and fight back accordingly, the better off we'll be as a society.
I'll ignore the name-calling, except to say that I don't believe after 22 years in practice and another 22 years on the bench anyone could fairly call me "naïve"! As for your experience, I can't speak to it, of course. I can only say that in my experience, only once did I even sense that a judge I appeared before was biased. Some judges are careless, some judges are discourteous to lawyers, and some judges, unfortunately, are simply unwilling to listen. But most judges, I've found, are trying their level best to be fair and make good decisions. Does that always happen? No. Do losing parties take issue with unfavorable decisions? Of course. And sometimes those losing parties ascribe unfavorable decisions to bias. That's just people being people. At least in my experience, though, your accusations of widespread bias and politically oriented decision-making are invalid.
She definitely did the right thing.
It was a decent and professional move.
She was right on in assessing the effect of Kavanaugh's stupid, tone deaf comment on that decision, and it isimportant to acknowledge how false his portrayal of those ICE stops is in real life. So i don't regret she said it. But we can never know for certain what another person's experience has been, so to imply that he knows no working class people is going too far, and is also a put down, though it may turn out to be quite true. So i find it appropriate that she apologized for that part of what she said, and give her great respect for doing it publicly, in order to restore harmonious relations--as far as we, the public, can see--on the Supreme Court.
"we can never know for certain what another person's experience has been" IMO, more importantly in the context of SCOTUS rulings it shouldn't matter. Neither the experiences of those ruling nor of those who will be affected by the ruling.
I have a lot of empathy for the working class, (I am one) immigrants, and all marginalized groups. I detest Kavanaugh as a human and his ruling, I agree with Sotomayor. HOWEVER, it is not the role of SCOTUS to even consider anyone's experience, their job is to interpret laws without bias and it is to be applied equally to all. I believe the "Kavanaugh stops" are unconstitutional and that's what SCOTUS needs to address, not how much it hurts whom. It is still wrong if rich people are arrested.
I can understand how personal experiences can affect pure legal judgments.
It’s nice that Soto apologized, but her critique of Kavanaugh is not far off the mark. Kavanaugh IS a product of an elite life. Among other things, he attended perhaps the most prestigious (certainly the most expensive) Catholic high school in the DC area, Georgetown Prep. The school, which also produced Gorsuch, has its own golf course. ‘Nuff said. So when Prep traveled into the inner city to play football or basketball against the other DC Jesuit high in DC, Gonzaga —a school located across the street from one of the worst open-air drug markets in the city, a school with a homeless shelter in the basement of the church on its campus— no surprise that the Gonzaga fans greeted Prep players and fans gleefully with signs and cheers that said, “Welcome to the Real World.”
Kavanaugh has now, through his invocation of legal theories that have systematically stripped away rights, through his creation of things like the Kavanaugh stop, gotten his revenge on places like the neighborhood around Gonzaga.
We now live in a “real world” of his and the other conservatives’ creation. It’s a world in which one person, the president, can pretty much do anything he wants, with next to no accountability. A world in which guns have almost as many rights as an unborn child, and more, certainly, than a pregnant woman. A world in which people with money can game elections with impunity, in which the distance between state and church is measured in millimeters. At most.
Yep, Soto has to work with the Kavanaughs at the SC. But she, and we, don’t have to accept that the SC majority has any more brilliant insight into what the constitution means than anyone else in their shoes. A “real world” isn’t made up by legal or any other minds. It’s lived in, acknowledged, reckoned with. And no justice’s opinion can overrule that fact. No matter how much he likes to think it can.
Of all the kidnapping, murder, coverups, and grift that’s gone on this year, Brett Kavenaugh’s feelings needed to be redressed.
I think the word is decorum.
Kavanaugh the person deserves no such apology. The guy is a racist and a bigoted elitist with very few, if any, redeeming character traits. But if Sotomayor feels the need to manipulate the knuckle-dragger in service of a higher benefit, then so be it. This sort of thing happens all the time in the real world, and most people understand the situation. She's being the (much smarter) adult here.
Her criticism is legitimate.