With all the squawking going on about Justice Sotomayor‘s past statements, the din must have numbed the minds of the conservatives who have forgotten that some justices in their own party have held pretty much the same views as Justice Sotomayor.  So here are  just a couple of reminders – blasts from the past if you will – about what some Republican justices have said about the very same issues for which Sotomayor is now being crucified.

Recall, Sotomayor said the following:

The saw is that if you’re going into academia, you’re going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they’re looking for people with court of appeals experience, because it is — court of appeals is where policy is made. And I know — and I know this is on tape and I should never say that because we don’t make law, I know.

And, she was on tape, so, of course, the comment has now become fodder for the howling right-wing of the party led by its titular head, Limbaugh the Loser.

But here is the shocker, some justices on the Supreme Court have said the same thing and enshrined it into their judicial decisions. Like, say, noted leftist jurist Antonin Scalia, who, in the majority opinion of the 2002 case Republican Party of Minnesota v. White, 536 U.S. 765, wrote:

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. See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999). Which is precisely why the election of state judges became popular.

Photo Credit:  AP photo on Huffington Post


Additionally, Sotomayor’s critics are up in arms over the fact that she has admitted that her ethnic background has an affect on her decision making process.  As it turns out, her statements are very similar to those made by Justice Sam Alito during his Senate confirmation hearing:

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. … And that’s why I went into that in my opening statement. Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position. […]

And that goes down the line. 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.

But, of course, these hypocritical lapses by Scalia and Alito are perfectly acceptable to the harping right wing since they were made by Republican conservatives.  Apparently Scalia and Alito haven’t gotten the memo that justices don’t make policy or let their backgrounds affect their views.

Ah, but what can you expext from a party that just doesn’t get it.  The whining and gnashing of teeth won’t do any good – especially when members of their own feel the same way Sotomayor feels and have expressed those same views publicly.


About Charlotte A. Weybright

I own a home in the historical West Central Neighborhood of Fort Wayne, Indiana. I have four grown sons and nine grandchildren - four grandsons and five granddaughters. I love to work on my home, and I enjoy crafts of all types. But, most of all, I enjoy being involved in political and community issues.
This entry was posted in Courts, Federal Courts, Judges, Judicial System, Politics, Supreme Court, U.S. Constitution and tagged , , , , , . Bookmark the permalink.


  1. 4wrdthnkndad says:

    Great points….now I just hope her opponents will consider your observations.

  2. wickle says:

    This is a stunningly brilliant post.

    I’m writing my own piece (I think, ultimately, that I’m going to back her, by the way), and I might well wind up referencing your post. Those quotes are great.

    I think it’s absurd to think that a person’s background doesn’t effect how s/he makes decisions. If we wanted people whose backgrounds didn’t effect them, then we’d want computers to analyze the law, not judges to make rulings.

  3. john b. kalb says:

    Charlotte- Scalia was referencing state court judges, not federal appeals court judges. There is a distinct difference due to states rights.
    And, Alito’s coments say nothing about his believing that Supreme Court justices having the authority, under the Consitution, to “change” laws.

  4. John:

    Yes, it says in bold he is referring to state court judges; however, he goes on in a footnote to expand on what he said:

    Although Justice [John Paul] Stevens at times appears to agree with Justice [Ruth Bader] Ginsburg’s premise that the judiciary is completely separated from the enterprise of representative government, post, at 3 (“[E]very good judge is fully aware of the distinction between the law and a personal point of view”), he eventually appears to concede that the separation does not hold true for many judges who sit on courts of last resort, post, at 3 (“If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls”); post, at 3, n. 2. Even if the policy making capacity of judges were limited to courts of last resort, that would only prove that the announce clause fails strict scrutiny. “[I]f announcing one’s views in the context of a campaign for the State Supreme Court might be” protected speech, post, at 3, n. 2, then-even if announcing one’s views in the context of a campaign for a lower court were not protected speech, ibid.-the announce clause would not be narrowly tailored, since it applies to high- and low-court candidates alike. 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 Stevens has repeatedly expressed the view that a settled course of lower court opinions binds the highest court. See, e.g., Reves v. Ernst & Young, 494 U.S. 56, 74 (1990) (concurring opinion); McNally v. United States, 483 U.S. 350, 376–377 (1987) (dissenting opinion).

    Scalia is acknowledging that state courts need to “make law” because many issues won’t make it to the highest courts either in the state system or the federal system. That statement indicates he believes that making law is necessary because courts of last resort do not hear every issue and, thus, do not necessarily get the chance to make law.

    Again, here is Bush I talking about Clarence Thomas – notice the use of the word empathy by Bush I:

    I have followed this man’s career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor. He’s also a fiercely independent thinker with an excellent legal mind, who believes passionately in equal opportunity for all Americans. He will approach the cases that come before the Court with a commitment to deciding them fairly, as the facts and the law require.

    It just amazes me that conservatives now find that the word “empathy” somehow should strike fear into the hearts of the entire nation, when in 1991, Bush I saw it as a quality of importance when nominating Thomas. Tsk. Tsk.

    Do you honestly believe the Supreme Court does not make law? Or that it does not make policy? All you have to do is look at various major cases over the years – Brown v. Board; Betts v. Brady, which was later overruled by Gideon v. Wainwright (clear case of making policy if I ever saw one); Buck v. Bell; Skinner v. Oklahoma; Roe v. Wade; Miranda v Arizona; etc.

    And, where in the following statement does Alito not make clear his reliance in his past knowledge of discrimination against his ancestry:

    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.

    I guess you think it is okay for him to say “And I do take that into account” and somehow believe that means he won’t use it in his judgment, yet somehow now that Obama has nominated someone who talks about ethnicity, it becomes a national crisis and the entire discussion raises the specter of fear of ethnicity. Was Alito not talking about his ethnic background? Did he flat-out say “And I do take that into account?” Just what does that phrase mean to you?

    As I said – Republicans/conservatives are now going to fall all over themselves trying to come up with distinctions. But it really isn’t going to work. The American public is growing weary of Republican griping and obstructionism.

  5. Arthur L says:

    I’m so glad, Charlotte, that you’ve called the conservatives on this. Many conservatives, especially the most shrill of them, do the country a disservice by propagating an ignorant portrayal of how our legal system works. They imply that there’s no gray area in the law, and do not understand the way judges and courts are constantly shaping law, as they should. There are decisions made by conservative justices which could just as easily be termed ‘activist’, as the word is commonly used. To those who still wring their hands about ‘legislating from the bench’, I say: If the law were that simplistic, why the need for appeals courts, state supreme courts, SCOTUS or courts at all? In the naive worldview of the far right, they wouldn’t even be needed.

  6. Iceironman says:

    Not one time did I hear the word white male being superior to a female of x race. Yep our background form how we look at things. Our backgrounds and ethnics dont give us superiority to others. Thats just wrong. Notice how Alito said “human being” not domiate white male.

    And yes judges have power. I think that is the point of of Scalia, yes the courts shape the future, but they are not there to bring a bias to shape the future like what your creepy lady wants to do. Decisions of the courts always have an effect. Obama has brought on a liberal who wants to effect the decisions. BOOYA.

    And if you think America is growing weary of conservatives—give this (*&^ three more years, you and your ideals of what America stands for is going to get the boot. You are for gun rights, your new judge is not, you are for personal property, your new judge is not, its hard to support a judge that is against two things that are in the constituition and she wants to rip away. I hope for your sake FT Wayne never wants to take your home, she would let it happen.

  7. Iceironman says:

    Charlotte, does the supreme court make law? I have not been to law school but maybe you could just wise me up to this since you think it does, or it is acceptable to do so.

  8. Iceironman says:



  9. Iceironman says:

    Govt owns 60% of GM, but will only make FUNDEMENTAL decisions. No we are not going socialist at all. Obama says he wants nothing to do with ownership, why not just make it a loan and get the hell out of corporate America? Honest question for you deniers who will go to your grave saying ” its not socialism because it doesnt match the definition exactly….. He doesnt want to control gm, hes just …..” Now he has appointed a 31 year old Yale lawyer to make desisions on the auto industry. You have to be joking, you all agree with this??????????????????????

    Nice jet ride into NY while he askes us to tighten our belts, and that we cant eat what we want and sacrifice. He tore into GM execs for flying in on BUSINESS, then he takes a jet, while our country is bankrupt??? You rationalize this how you want, what a Marxist dictator he is.

  10. Ice:

    For heaven’s sake – calm down. Just what do you think makes our backgrounds? Our backgrounds are made of our ethnicities, our genders, our race, our way of viewing the world and politics, our way of growing up and everything in between. Why do we still have all kinds of ethnic festivals around this country? We have Greek Fest, German Fest, Irish Fest, Scottish Highland Days, Hispanic Fest, etc. in Fort Wayne, all recognizing and celebrating our ethnicity – our national origins.

    I can’t believe you said that! Justices don’t grow up in a vacuum. They are raised with certain values, morals, viewpoints, etc. based on their heritage which includes gender, race, ethnicity, etc.

    Alito made clear that his ethnicity impacts how he sees things when he said he would take into account his ancestry – his ethnicity. How much clearer do you want him to be? Republicans are simply desperate at this point and can’t think of anything better with which to attack Sotomayor – even when their own ilk say the same things.

  11. Ice:

    You have got to be kidding on the jet ride?

    Let’s take a trip back in the wayback machine. Do you think Nixon drove instead of flying when he imposed wage and price controls beginning in 1971 – they ended up in place for over three years. Wow, wage and price controls – do you call that socialism also? I don’t imagine you were even born, so perhaps you don’t remember those times.

    How about the oil embargo of 1973 – do you think Nixon traveled other than by jet when the rest of us had to curtail our use of energy?

    And how about the 10% high unemployment during Reagan’s terms? Unemployment averaged 7.5% during his two terms in office – do you think he took the car or train? Inflation was 10% at one point.

    Of course, let’s not forget the unemployment rate and the inflation rate during Carter’s terms. Anyone remember him hopping into the old limo or jumping on a train instead of a jet?

    Ice, you are grasping at straws here, and you know it. Your hatred of Obama is truly amazing.

    As to the ownership of GM – I choose to believe him when he says it is temporary – I have no reason to doubt him at this point. I assume you believed W when he manipulated the truth about Iraq to justify our invasion of a country that had nothing to do with 9/11. Of course, we now all know he and his flock of advisers simply lied to get us over there.

    If Obama falls back on his promises, then I will admit I am wrong. He is only 5 months into the presidency, and all the bitter Republicans just can’t stand the fact that he seems to be raising our optimism level and our faith in the future.

    He has done a great job so far, and I am not disappointed, and I trust him.

  12. Ice:

    You are incorrect on the issue of property in your above post. Property is divided into two primary categories – personal and real.

    Real property is land and anything permanently attached to it; personal property is everything else. I am sure you meant to refer to real property and not personal property. However, you might read the Constitution again because the only time reference is made to “real property” is in Amendment 5 which states “nor shall private property be taken for public use without just compensation.”

    The body of the Constitution does not mention private property at all. I am just calling that to your attention, so you know that ensuring protection of private property is primarily the result of court decisions and legislative enactments.

    But just in case you are concerned about personal property, here is a decision where Sotomayor invalidated the City of New York’s taking of personal property:

    I assume you are referring to the Didden decision, which conservatives have latched onto to show that Sotomayor is anti-property. So here is another take on that case.

    As to Fort Wayne taking my property – it is in the process of condemning homes in another part simply to widen State Street to four lanes and speed traffic through a neighborhood. Of course, you know I would fight to the end to prevent them from taking my property.

    Just as an aside, I filed my first Freedom of Information Act (FOIA) request for all information about Thieme Drive and the St. Marys across from my home. We will see what they turn over.

  13. Iceironman says:

    Obama was supposed to be different? A new kind of politician. He is the same, Americans (CEOS) you walk, Obama will fly. How long till I can start shouting, Time to pull out of GM. I cant believe the goverment is only going to make the FUNDEMENTAL decicions.

    I dont hate obama, It is his Marxist views I hate. It is the fact that the masses sit back and watch him spend my childrens money to the Nth degree and everyone just goes along. Did you see the Chinese sit Gietner down and tell him “show us the math”? Why wont any American reporters do the same? Why cant we get the story on main stream what this printing of money is going to do to us? Intrest rates are going to go through the roof. Our dollar will have no value. And now in the midst of Americas bankruptcy, we will hear about socialist healthcare? Makes alot of sence to me!

  14. Iceironman says:

    During the election, obama said his father was agnostic, now he is in the middle east, his father was Muslim????Honesty anyone?

  15. Iceironman says:

    Charlotte said she had no reason to dought Obama, assuming he would never lie. Well, there you have it.

  16. Iceironman says:

    Not Diden, Kelo?

  17. Ice:

    Here is what I said (please make sure you double-check my statements before you quote me) 🙂

    “If Obama falls back on his promises, then I will admit I am wrong. He is only 5 months into the presidency, and all the bitter Republicans just can’t stand the fact that he seems to be raising our optimism level and our faith in the future.

    He has done a great job so far, and I am not disappointed, and I trust him.”

    I don’t see anywhere in those lines where I said I had no reason to doubt him or that I didn’t think he would ever lie.

    So, there you go.

    Sotomayor had nothing to do with Kelo. Kelo was a case from the Connecticut Supreme Court – Sotomayor was on the federal bench, first in the Southern District of New York and, later, on the Second Circuit Court of Appeals.

    By the way, how far off topic do you want to go? My post was about Justice Sotomayor, not about Obama’s means of transportation.

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