Daily Show on Sotomayor

A comedic take on my argument about Sotomayor.

Greenwire: Enviro groups like what they see in Obama's justice pick

Sonia Sotomayor keeps getting better.

Greenwire:

Even though environmental issues have not been a major cog in Supreme Court nominee Sonia Sotomayor's legal career, environmentalists have joined the chorus of left-leaning advocacy groups that have thrown their support behind President Obama's pick for the high court.

"Judge Sotomayor is well-qualified in light of her personal, academic, legal and judicial experience," said Glenn Sugameli, senior legislative counsel and head of Earthjustice's judicial nominations project. "Her knowledge, understanding and service as a federal trial and appellate court judge provide invaluable perspectives for deciding environmental protection and related issues."

Environmentalists primarily are pointing to a single 2007 decision by Sotomayor -- on U.S. EPA's use of cost-benefit analysis in the regulation of pollutants -- as a signal that the potential future justice may side with them on a number of issues.

In that case, Riverkeeper v. EPA, an environmental group challenged an EPA rule relating to cooling-water intake structures in power plants. The agency was set to require hundreds of power plants to modify their water cooling systems, which cumulatively caused the deaths of millions of fish every year.

But the agency sought to choose the "best technology" for the upgrade, using a cost-benefit analysis that was based on both the price of the newer equipment and the potential marine life that would be killed. The top-of-the-line technology could reduce fish kills by as much as 98 percent, though it cost roughly 10 times as much as a different type of equipment that would reduce deaths by a smaller amount.

Sotomayor issued an opinion in which she declared that the Clean Water Act did not give EPA the leeway to do such a cost-benefit analysis.

In early 2008, the U.S. Supreme Court reversed the decision in a 6-3 ruling, with Justice Antonin Scalia stating in an opinion that EPA could use such an analysis in crafting its regulations.

"This was considered a defeat for environmentalists and a victory for advocates of cost-benefit analysis," Dan Farber, an environmental law expert at the University of California, Berkeley, wrote yesterday on his blog, "Legal Planet." "Although Scalia claims to believe in following statutory language to the letter, Sotomayor's interpretation clearly was more faithful to the statute's demand that EPA's standards 'reflect the best technology available for minimizing adverse environmental impact.'"

Environmentalists say that ruling may offer a glimpse of her positions on any number of issues relating to environmental regulation that may come before the court -- including on matters relating to climate change.

"Filling the current Supreme Court vacancy with a jurist who is fair-minded and experienced is critical," Sugameli said. "Polluters have attempted to rewrite the Constitution and laws to repeal clean air, clean water and other essential safeguards. Four of the remaining justices unjustifiably attempted to block the Clean Air Act's application to global warming pollution, and to reinterpret the Constitution to selectively prohibit citizen and state access to court in the 2007 Massachusetts v. EPA case."

It appears unlikely that those environmental issues will play much of a role in Satamoyor's confirmation process. Interest groups on the right that have attacked the nomination have largely pointed to her decisions on a number of social policy issues and her comments about the role of the judiciary. And though she has spent more than a decade on the U.S. Court of Appeals, the New York City-based 2nd Circuit typically deals with a relatively narrow range of environmental-based cases.

However, Sotomayor has been involved in one closely watched climate change case, though her court has not issued a ruling on the issue.

As part of a three-judge panel of the 2nd U.S. Circuit Court of Appeals, Sotomayor heard a 2006 case, Connecticut v. American Electric Power Company Inc., in which eight state attorneys general sued a number of major electric utilities, alleging that greenhouse gas emissions amounted to a public nuisance.

After a federal district court ruled in favor of the utilities, the states appealed the case to the 2nd Circuit.

Sotomayor -- who was the lone Democratic nominee on the three-judge panel -- did much of the questioning of both sides and indicated in her comments that she believes there may be a need for regulation of greenhouse gas emissions.

"I have absolutely no idea about the science of global warming," she said at one point during the hearing. "But if the science is right, we have relegated ourselves to killing the world in the foreseeable future. Not in centuries to come but in the very near future."

Sotomayor was also was critical of an industry defense that a ruling could pave the way for a slew of other climate change-related nuisance claims. "That's the nature of every tort action," she told the utility attorney.

At the same time, Sotomayor did question whether using public nuisance statues was the proper way to address greenhouse gas emissions when "there are many other remedies available" (Greenwire, June 8, 2006).

The panel has yet to rule on the issue. Environmentalists, however, see the lack of a ruling as little concern.

"It's not much of a concern, it's a curiosity," said Frank O'Donnell of the group Clean Air Watch. "She seems to have an outstanding record."

Eugene Robinson: A Smile to Set the GOP on Edge

My man Eugene Robinson (recent Pulitzer winner) drops another fantastic editorial in todays Washington Post. Here, he writes about Sonia Sotomayor, Obama's nominee to fill Justice Souter's seat on the Supreme Court. Regardless of who Obama had picked, the GOP and their sycophantic flock of infants would have no doubt bashed them, having "liberal activist judge" talking points ready. Sotomayor is by most educated accounts, a relatively moderate judge, with a highly distinguished career in both private and public law, and as Robinson points out, a longer career in the federal justice system than anyone else on the current Supreme Court. Of course, like the pathetic weasels that they are, Limbaugh, Coulter, and New Gingrich (amongst other squabbling old leaders of the "new" GOP) have jumped on the easiest thing they could: an out-of-context remark about being proud of her heritage and race.

What they don't understand, and what I haven't seen media explain, is that her saying that her life as a Latin-American woman WOULD make her a better judge in modern America. Granted, this is assuming that she has the educational and professional background to hold the position, but her unique perspective of being an underrepresented sex in an underrepresented minority DOES in fact provide her with a better understanding of the law. The only thing that I think would make her a more suitable candidate is if she were in fact also a lesbian. Who better to make weigh the constitutional relevance to modern legal precedence on abortion issues than a woman, who would be most directly affected by the decision? Who better to make decisions on affirmative action than someone who has lived through the subtle racism of modern professional America? Who better to decide on issues of immigration than a member of the Latin-American community (yes, I do know she was born in the Bronx, and that her parents are from Puerto Rico which is an American territory and the Latin-American community is not homogeneous)? I think it would be better if she was a lesbian, because who better to decide about whether same-sex marriage should be legal than someone who would be directly affected? All of the white-man decisions have been made, will continue to be made by the rest of the court (looking at you Clarence Thomas).

What Newt Gingrich fails to understand, is that racial pride for minorities in American is very different from racism. For white America, people can be proud of their Irish or Italian heritage, or celebrate being a southern gentleman or a California surfer, or enjoy the Jewish community which shares a common past and culture, but what has defined "white power" is hatred for everyone else. What Sonia Sotomayor was celebrating in her comment (which I think she should stand behind) was pride for her experience and her race and her culture. This invokes fear in white America, just as "Black is Beautiful" did in the 60s and 70s. Because white America only understands racial pride as hatred for everyone else, most cannot understand that ethnic pride for minorities is a celebration.

One final note, which may risk sounding like a conspiracy, but I believe that a fundamental reason why Limbaugh, Gingrich, Coulter, and others were so quick to jump on the racial comments, is that they are attempting to rally the subliminal or even overt racism which still unites the remaining steadfast GOP constituency against Obama. By brining up race, they can remind people that Barack Obama is in fact black, and that is something to be feared. This is the same old GOP bullsh!t, the same old tactics, the same old people. I look forward to the day when the GOP is a (not so) fond memory like the Whigs; something kids read about in history books. The Democratic party is fractured enough. Let moderate Democrats become the most right wing element in politics in America and start their own party once the black hole that once was the GOP settles.

Eugene Robinson in the WP:

President Obama's nominee for the Supreme Court, Judge Sonia Sotomayor, is a proud and accomplished Latina. This fact apparently drives some prominent Republicans to a state resembling incoherent, sputtering rage.

"White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw," former House speaker Newt Gingrich ranted Wednesday on Twitter. My first reaction was that politicians above a certain age should never be left alone in the danger-strewn landscape of social networking. My second thought was: Whoa, Newt, what's that about?

Rush Limbaugh also -- predictably -- bellowed endlessly about how Sotomayor was a "reverse racist," and how Obama was one, too. But unlike Gingrich, Limbaugh doesn't ask to be taken seriously. He just asks to be paid.

Gingrich's outburst was in reaction to a widely publicized, out-of-context quote from a 2001 speech in which Sotomayor mused about how her identity might or might not affect her decisions as a federal judge. Far from being some kind of "racist" screed, the speech was actually a meditation on Sotomayor's personal experience of a universal truth: Who we are inevitably influences what we do.

Each of us carries through life a unique set of experiences. Sotomayor's happen to be the experiences of a brilliant, high-powered Latina -- a Nuyorican who was raised in the projects of the Bronx, graduated summa cum laude from Princeton, edited the Yale Law Journal, worked as a Manhattan prosecutor and a corporate lawyer, and served for 17 years as a federal trial and appellate judge.

Given that kind of sterling résumé -- and given that she has, according to presidential adviser David Axelrod, more experience on the federal bench than any Supreme Court nominee in at least 100 years -- it's understandable that Republican critics would have to grasp at straws.

The charge that she's a "judicial activist" finds no basis in her voluminous record. Critics have seized on a ruling she joined in a case called Ricci v. DeStefano, involving a reverse-discrimination claim by a group of white firefighters in New Haven, Conn. But Sotomayor's action in that case is more properly seen as an example of judicial restraint.

What happened was that the city gave an advancement exam to firefighters, and no African Americans were deemed eligible for promotion. Fearing that it would lose ground in its effort to diversify the leadership of the fire department, and fearing a civil rights lawsuit, the city canceled the exam. The firefighters who passed did not get the promotions they had expected. A U.S. District Court judge ruled that the city government had acted within the law, and a panel of the U.S. Court of Appeals for the 2nd Circuit -- including Sotomayor -- agreed.

What Sotomayor's attackers either don't understand or won't acknowledge is that the issue before the court wasn't whether the city of New Haven had acted fairly in canceling the exam but whether it had acted legally. There was ample precedent indicating that the action was, in fact, legal. I thought the whole theory of judicial restraint was that we didn't want unelected judges telling our elected officials what to do. I thought the conservative idea was that judges were just supposed to "call balls and strikes" -- which is just what Sotomayor and her colleagues did.

Ah, but there's always a subtext. Like Sotomayor's 2001 speech, the New Haven case was really about identity -- and about power. In both instances, as Sotomayor's critics saw it, minorities were either claiming or obtaining some kind of advantage over white males. Never mind whether this perception has any basis in fact. The very concept seemed to be enough to light a thermonuclear fuse.

Despite the best efforts of Gingrich, Limbaugh and others, Sotomayor's confirmation process probably won't be about race. Her qualifications are impeccable, her record is moderate and her personality, according to colleagues, is winning. At her confirmation hearings, she'll have the opportunity to supply the missing context for any quote they throw at her. Absent some 11th-hour surprise, I can't imagine that her opponents in the Senate will be able to lay a glove on her.

I also can't imagine that she'll pretend to be anyone other than who she is. Sonia Sotomayor has made clear that she is proud of her identity, and she offers that pride not as an affront but as an example -- not white, not male, not Anglo, not inclined to apologize. She is the new face of America, and she has a dazzling smile.