May 26, 2009

That thing Sonia Sotomayor said about courts making policy.

The video:



"Court of Appeals is where policy is made." We're going to hear that line dissected, attacked, and defended over and over. Let's talk about those words.

And let's also talk about the interesting mannerism of placing one's left hand inside one's clothing up around one's shoulder. I know someone who does that at times, and I've given a lot of thought to what it signifies. I have my theory, but I'll save it until some of you weigh in.

53 comments:

muddimo said...

self-reassurance

Diamondhead said...

People develop body language like that when they are/feel like the focus of attention in a room.

rhhardin said...

It means she's talking to herself.

Bob Sacamano said...

Let me be the first to apply a phrase I heard so often between 2001 and 2008 about anything and everything that came out of the Bush administration... she is so 'scary'.

Oh and the hand inside the jacket means that she is comfortable touching herself in public.

garage mahal said...

I would love to see some sort of study that evaluates just who is the "activist" side, liberals or conservatives.

MayBee said...

I do that all the time. Even if I don't have clothes covering me there, I'll rest my hand against my shoulder and clavicle.

I didn't realize I did it so often until I was teaching an aerobics class, and I noticed some of the participants following even that motion.

I've assumed it was the position I was usually in when I spent my time in the womb.

Gavin said...

It means "I want you to think what I'm saying is off-hand and obvious, and not at all contentious. See! Look how relaxed I am whilst I say it! I'm doing something personal and physical whilst I say it! That's how comfortable I want you to think I am with what I'm saying."

Which means they are certain someone will have a thought about the words that isn't agreeable.

Bissage said...

I couldn’t watch the video but I presume the hand-inside-her-clothing thing is to restrain herself from talking like SeƱor Wences.

bearbee said...

She is tactile. Feels vulernable and is reassuring but also her bra strap may be too tight.

Dust Bunny Queen said...

Great. Just what we need at this time is a judge who wants to make 'policy'. Its bad enough that we have King Obama and all of his non elected/appointed Czars shoving 'policy' down our throats, gutting the Constitution and trampling on the legal contract rights in the name of class warfare equality.

The gesture is a self comforting or protective ......or her bra strap is slipping off her shoulder, in which case she needs to see Trooper York's wife and get a properly fitted bra. :-)

john said...

Excessive hand waving could go along with speaking extemporaneously, but so much hand movement in front of her face seems defensive.

Hand in her blouse - maybe she had a zit on her shoulder. (Make sure you are wearing a jacket before you pick those things.)

MadisonMan said...

Does she always do that with her hand? I'd hate to think someone has a video of me, somewhere, and it's the only time I've ever picked my nose, and they're thinking I always do that.

ricpic said...

What the hell is she saying? That all us withit people know that judges are legislators and should be legislators and it was a goof for me to let that cat out of the bag but since we all know that that's the way it is and that's the way it should be -- so what?!

Wade Garrett said...

Appellate judges always make policy and always have and only non-lawyers fail to understand that.

Don't believe me? Ask Sandra Day O'Connor.

ricpic said...

Sotomayor is a coarse and gross second rate mind being nominated to the highest court in the land.

Wade Garrett said...

A gross and second-rate mind? Have you read any of her opinions for yourself, or are you just repeating what conservative talking points told you to say? Her resume speaks for itself and nobody ever accused her of lacking intelligence until Jeffrey Rosen's terrible hit-piece from a couple of weeks ago.

rhhardin said...

I like Roger Kimbell's typo on Sotomayor,

The more one looks into Sotomayor's recrod, the clearer it is that, as a friend of mine put it, identity politics is her judicial philosophy.

link.

ricpic said...

Did you actually listen to her in that clip, Garrett? The crap she said and was PROUD to say? She's smug stupidity personified.

Pogo said...

Courts make policy ....oh, ha ha hah. She said it out loud, and meant it.

As Insty linked this morning, in exchange for increased sexual freedom, the Left routinely removes personal freedom in every other area of life: Speech, Work, Business, Food, Housing, Consumer Goods, Transportation, Medical Care, Education, Free Trade, Self-Defense, Property Rights, Parental Rights, National Security, Police Powers, and Recreational Drugs.

As with Sotomayor.

Diamondhead said...

That's the drawback of being an affirmative action pick, Wade. Everyone knew the pick had to be a woman and everyone knew she had to be an Hispanic. Everyone knew that the female Hispanic would have to be empathetic (read: "compelling" life story"). When everyone knows those traits are most important, doubts regarding her other qualifications are inescapable.

knox said...

Looks like self-consciousness to me.

AllenS said...

"I know I shouldn't say this" she says. Because it was on tape? Because she knows it is wrong? Incorrect? Is there a secret society that she belongs to that she doesn't want anybody to find out?

If you know you shouldn't say something, then why say it?

Vote no!

traditionalguy said...

She was attempting to "balance" herself. She seems to be a friendly and open personality to the extent she does not mind letting you know where she is coming from. I am impressed, as was George I. She will be a fine Justice. That "she's not smart" talking point is BS.She is smart enough to communicate well and seems to have a first class legal skills.

lyssalovelyredhead said...

I'm usually the first to get upset about the idea of legislating from the bench, but I think that this statement is being blown out of proportion. She didn't say that she likes making policy, or that she thinks that it's a good thing, just that it happens- can anyone seriously say that it does not?

I'm certainly willing to give her the benefit of the doubt that this statement does not an activist judge make. If I'm going to be worried about anything, I'm a lot more concerned about some of the racial statements that she's made and her position in the firefighters' case.

former law student said...

I'm going to go along with dbq and say once again, it's all about the breasts.

If her gesture was a little lower it would mean she had a Napoleonic complex.

EDH said...

That mannerism reminds me of Ernestine calling from the phone company.

Paul Zrimsek said...

I can't wait to find out which tax she forgot to pay.

dbp said...

Maybe it is a habit that comes from wearing judicial robes--which are themselves a kind of habit for judges.

Lem said...

“Policy is made.”

What she was trying to say was that the court of appeals is like the soviet era pre-summit negotiation meetings that took place before the two heads of states ever got to sit down and finally meet.

By the time things get to the Supremes they have been pretty much chewed over and digested in the lower courts. That's all

Maybe it was a poor choice of words but I don’t see the big deal.

David said...

Based on her record, she seems unlikely to Destroy the Republic. We have survived worse.

Anyway, unless she really screwed up the tax thing, she's going to be Justice Sotomayor. Only then will we really know what kind of Supreme Court pick she is. Anyone who is even whispered to be on a short list trims their sails as soon as think they have a chance. She's been trimming for a while.

To me her strangest and perhaps most telling comment was that being a hispanic woman will enable her to make better judicial decisions than white males. Is that bigoted? As a white male, I could treat it as such in I thought anyone would give a damn.

Darcy said...

Oh. Well. I guess we should be happy he didn't nominate a ham sandwich?

(And I do the hand inside the clothing to the shoulder thing...I'm assuming it to indicate a self-conscious moment.)

David said...

"if I thought . . . "

Hoosier Daddy said...

I can't wait to find out which tax she forgot to pay..

Well they say she has no accumulated wealth so she probably never made enough to pay any.

EDH said...

"Look, Cher, I work for the phone company, it's not my job to think."

Or make policy?

Darcy said...

And I should proofread. lol.

*waves at hilariously cranky ricpic*

Michael Hasenstab said...

Cooties?

Eyebrow lube kept in a secret pocket inside the blouse?

Skipper50 said...

It's the Brooklyn accent that should disqualify her. Sounds like an episode of Law & Order.

Skipper50 said...

Perhaps she holsters her handgun on her shoulder.

Darcy said...

Damn it, Michael! Now where am I going to hide my eyebrow lube?

Don't answer that.

Palladian said...

"And let's also talk about the interesting mannerism of placing one's left hand inside one's clothing up around one's shoulder. I know someone who does that at times, and I've given a lot of thought to what it signifies. I have my theory, but I'll save it until some of you weigh in."

Someone gave her a bra wedgie.

traditionalguy said...

The comment about white men compared to a hispanic women's life experiences is a viewpoint she would have gotten from time spent at Princeton and Yale where that may have been true. The rest of us white guys are not being dissed, in my humble opinion.

AlgonquinS said...

She has a third nipple, which happens to be on her right shoulder.

ratchetmouth said...

What does it mean?

Her shoulder was itchy?

Evaluating her entire record on just one quote on video, is sort of like trying to make something sketchy and meaningful out of someone scratching their shoulder.

It's a supreme court nomination! There's nothing in her record that makes her look "dumb" as so many are saying now. (You have to respect Karl Rove, who certainly signed off on Meirs' many promotions, as well as her nomination, calling Sotomayor underqualified. That's chutzpah!)

Seriously, this is big-kid stuff. You may disagree with things, but let's let the discourse be about disagreements, not broad comments about intelligence or the way she scratched her shoulder or other shallow vagaries.

Palladian said...

"Seriously, this is big-kid stuff. You may disagree with things, but let's let the discourse be about disagreements, not broad comments about intelligence or the way she scratched her shoulder or other shallow vagaries."

So what about her record interests you? Where I come from the "big-kids" don't think that being a woman and a "wise Latina" are sufficient qualifications for being nominated to the least checked branch of the federal government. So what else recommends her?

Jeremy said...

Other opinions:

But for legal experts, there is nothing actually controversial to what Sotomayor said. Her political crime, if there were one in this case, was speaking the truth.

"She's not wrong," said Jeffrey Segal, a professor of law at Stony Brook University. "Of course they make policy... You can, on one hand, say Congress makes the law and the court interprets it. But on the other hand the law is not always clear. And in clarifying those laws, the courts make policy."

As Segal noted, one of the most recent cases heard by the Supreme Court -- itself a court of appeals -- involves the strip search of a 13-year-old who school officials believed was carrying ibuprofen. "There is no clear knowing statement whether officials can be sued for that sort of behavior," he noted. "So when justices come up with a decision on that, they would be making policy."

Eric Freedman, a law professor at Hofstra University, was equally dismissive of this emerging conservative talking point. "She was saying something which is the absolute judicial equivalent of saying the sun rises each morning. It is not a controversial proposition at all that the overwhelming quantity of law making work in the federal system is done by the court of appeals... It is thoroughly uncontroversial to anyone other than a determined demagogue."

Freedman, who was a classmate of Sotomayor's at Yale Law School, noted that while the Supreme Court will decide roughly 90 cases a year, the court of appeals will weigh in on "many thousands." They are, indeed, "the final stop for the most important decisions in the federal system." They also are the forums where vagaries and gray areas of the law go to be clarified.

"One element of judging, obviously, is issuing precedent," Freedman explained. "But if the thing were squarely disposed of by existing precedent they probably wouldn't go to the court of appeals for it. Their lawyers would say, forget it... So this is where you get clarification for cases without precedent."

"I would be surprised if you got a different opinion from a fair-minded observer in the legal world," he added.
(Sam Stein - 5/26/09)

MadisonMan said...

It's the Brooklyn accent that should disqualify her. Sounds like an episode of Law & Order.

I agree. Nails on a chalkboard. Ugh.

A Lawyer Mom's Musings said...

She was warming her hand up, or giving herself a shoulder massage. Or it's a reflective pose. Do we care?

joewxman said...

"it's the Brooklyn accent that should disqualify her. Sounds like an episode of Law & Order."

Its not a Brooklyn accent..its a Bronx accent. Its completly different. Anyone from either Brooklyn or the Bronx will tell u.

EDH said...

Jeremy makes a fair point about "policy-making" and the courts. There is, up to a point, an established role for the courts to shape policy where the law is ambiguous and the federal jurisdiction manifest.

It was Sotomayor's "say no more" attitude that I found disquieting about her respect for those limits.

Kind of what I'd imagine Tim Geithner's private thoughts on the obligation to pay self-employment taxes would sound like before he was nominated for Treasury Secretary.

traditionalguy said...

Lets see. Her mother is a nurse. Her brother is a doctor. She is sensitive and intelligent. Her family was raised Roman Catholic. She sounds like as good a choice as we could have hoped for coming out of Obama's party. This may be a chance for Obama to set the wing-nut section of the Republican's support to fighting the moderates who will not fear her for being hispanic. Rush is getting JuJitsu thrown using his own natural reactions here.

kalkin said...

@Palladian:
Gee, I dunno. Summa from Princeton, Yale Law and more than a decade in one of the most highly regarded appellate courts in the country not enough for you? She sure as hell is more qualified than most of the justices on the court, and no one was quibbling about "qualifications" and intelligence when Alito was nominated with similar credentials. I mean, seriously, what do you want from this woman? If she was a top legal academic you'd complain that she didn't have judicial experience. If she has tons of judicial experience you claim she's not a good enough judicial scholar.

John said...

Jeebus, what a colossal waste of time. She's in... Get OVER it!

Alphonse said...

The kind of affirmative action to be really worried about is the kind that got a moron like George W Bush into Yale, Harvard, the Texas governorship and the US presidency.